Cooling Off Period Waiver Mutual Consent Divorce

In this post we will discuss about the recent order of The Punjab and Haryan High Court in which it allowed for the waiver of the compulsory six-month cooling-off period prior to their divorce by mutual consent after finding that there was no possibility of reconciliation and that the couple was determined to get divorced

Cooling off period before divorce can be waived – HC

Introduction

On the plea of a couple, the Punjab and Haryana High Court ordered the waiver of the compulsory six-month cooling-off period prior to their divorce by mutual consent after finding that there was no possibility of reconciliation and that the couple was determined to get divorced.

Facts of the case

By means of a divorce decree under Section 13-B of the Hindu Marriage Act , 1955, the couple sought the dissolution of their marriage on the basis of mutual consent. This petition for divorce was filed in June 2020. In the meantime, they also filed an application to waive the statutory six-month waiting period laid down in Section 13-B(2) of the Act. However, the additional district judge, Mohali, dismissed their application on 6 August. Aggravated by the order, the couple approached the High Court and argued that they had been married in November 2010, but had been living separately since January 2018.According to them, there was no possibility of reconciliation and they were firm in their resolve to get divorced.

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Legal Standpoint

After hearing the couple’s arguments, the HC noted that the petitioners had apparently executed a memorandum of understanding on 10 June 2020 to settle all the issues and that there was no dispute as to the custody of their little daughter. They ‘re both over 30 years old and educated. They would therefore be presumed to know what would be in their best interest.

‘In general, such a waiver may be considered if: I the statutory period of six months provided for in Section 13-B(2), in addition to the statutory period of one year of separation of parties pursuant to Section 13-B(1), has already elapsed before the first motion itself; (ii) all mediation / conciliation efforts to reunite the parties have failed and there is no likelihood of success in that direction by fur further efforts ; (iii) the parties have genuinely settled their differences, including alimony, child custody or other pending issues and (iv) the waiting period will only prolong their agony,” observed the high court in its detailed order.

Section 13B(2) of the Hindu Marriage Act provides for a divorce bar to be granted before six months after the filing of a divorce petition by mutual consent. Justice Sanjay Kumar passed the order, setting aside the order of 6 August 2020 by the additional district judge of Mohali.He refused to waive the statutory six-month waiting period for a local couple.

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Conclusion

“In the light of the aforested circumstances, this court is of the opinion that this was an appropriate case for the learned additional district judge to exercise his discretion in their favour, in accordance with the law established by the Supreme Court in 2017 in the case Amardeep Singh vs. Harveen Kaur, and to waive the waiting period. As a result, the statutory waiting period of six months is duly waived. The parties are free to seek appropriate further orders from the additional district judge, Mohali, in order to advance their case, “said Justice Sanjay Kumar, while setting aside the order of the Mohali court.With this, the couple would not be required to wait for a period of six months to get divorce on the grounds of mutual consent.

This post was written by Kasha Doshi.

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