Case Note & Summary
The petitioner and respondent were married and jointly filed an application under Section 14 of the Hindu Marriage Act, 1955 seeking waiver of the one-year statutory period to present a petition for divorce by mutual consent. They also filed a joint application for divorce by mutual consent under Section 13B of the Act. The Family Court, Nashik, by order dated July 11, 2018, allowed the waiver of the one-year period but in paragraph 2 of the order directed the parties to comply with a period of 18 months as contemplated under Section 13B for mutual divorce. The petitioner challenged this direction. The High Court observed that the Family Court had misread Section 13B, which under subsection (2) provides that after the first motion, the court shall pass a decree of divorce not earlier than six months and not later than 18 months. The court noted that the Family Court erroneously required the parties to wait for 18 months, whereas the correct interpretation is that the waiting period is six months, with an outer limit of 18 months. The High Court set aside paragraph 2 of the impugned order and directed the Family Court to proceed with the divorce petition in accordance with law, without insisting on the 18-month waiting period.
Headnote
A) Hindu Marriage Act - Divorce by Mutual Consent - Cooling-off Period - Section 13B(2) - The Family Court erroneously directed parties to wait 18 months under Section 13B, whereas the provision requires only a six-month waiting period after the first motion. The court misread the section and imposed an additional period beyond the statutory requirement. (Paras 5-8) B) Hindu Marriage Act - Waiver of Statutory Period - Section 14 - The Family Court correctly waived the one-year period under Section 14 for filing the divorce petition, but erred in imposing an 18-month waiting period under Section 13B. The High Court set aside the direction and allowed the parties to proceed with the divorce petition in accordance with law. (Paras 4-9)
Issue of Consideration
Whether the Family Court correctly interpreted Section 13B of the Hindu Marriage Act, 1955 by directing the parties to wait for 18 months before obtaining divorce by mutual consent.
Final Decision
The High Court allowed the petition, set aside paragraph 2 of the impugned order dated July 11, 2018, and directed the Family Court to proceed with the divorce petition in accordance with law, without insisting on the 18-month waiting period.
Law Points
- Section 13B(2) of Hindu Marriage Act
- 1955 mandates a six-month waiting period after first motion for mutual consent divorce
- not 18 months
- Section 14 of the Act allows waiver of one-year bar for filing petition
- Family Court misread provisions.
