A Landmark Judgment by the Punjab & Haryana High Court

Introduction

The Punjab & Haryana High Court has recently clarified that a detailed inquiry is not necessary for waiving the cooling off period in divorce proceedings under the Hindu Marriage Act, when the divorce is by mutual consent.

The Court’s Stand: Waiving the Cooling Off Period

A division bench of Justice Sudhir Singh and Justice Sumeet Goel stated that the court, while considering the waiver of the cooling off period, should be satisfied that there are sufficient grounds to grant such permission and that there is no concealment or misrepresentation by the parties. The court needs to satisfy itself as per Section 23 of the Act.

No Need for Detailed Inquiry

The court further added that no detailed inquiry, similar to a trial, is usually required while considering such an application. The court is well within its rights to examine the pleadings and affidavits presented before it for such evaluation.

Case Background

These observations were made during the hearing of a plea against the order of a Family Court. The court had rejected an application filed under Section 13-B of the Hindu Marriage Act, 1955 (HMA) for waiving off the statutory period of six months.

The Parties Involved

The parties involved were married in 2018 and started living separately since January 2020 due to temperamental issues. They filed for mutual divorce in August 2023.

Family Court’s Decision

The Family Court recorded that the requirement of Section 13B(1) of the Act had been satisfied as the parties had been living separately for more than one year. However, with regard to Section 13B(2) of the Act, the parties were required to move a second motion, as per the timeframe provided therein. Consequently, the matter was adjourned to March 2024.

Appeal to the High Court: Waiving the Cooling Off Period Application

In September 2023, they jointly moved an application before the Family Court seeking to waive off the statutory period of six months under Section 13B(2) of the Act. The Family Court dismissed the application, stating that the case of the appellants did not fall within the parameters fixed for waiving off the stipulated period of six months as mentioned under Section 13B(2) of the Act.

High Court’s Observations

The High Court noted that Section 13-B of HMA is irenic in essence, compared to Section 13 of the Act, which is based on fault-proving philosophy. Hence, the provision of Section 13-B deserves to be interpreted and applied accordingly since it aims at bringing about a peaceful and mutually agreeable final solution to matrimonial discord.

Factors for Waiving the Cooling off Period

The bench also summarised the following factors which need to be considered for waiving the cooling off period under Section 13-B(2) of the Hindu Marriage Act, 1955:

1. Duration of the marriage
2. Duration of separation
3. Existence of other proceedings between the parties
4. Whether declining such permission will prolong the agony of parties
5. Whether there is any misrepresentation or concealment of material facts by parties while seeking such permission
6. Whether there is any child born out of the wedlock and how the interest of the child is being secured
7. Whether there is any reasonable probability of reconciliation between parties
8. Age, educational qualification, and economic position of the parties, especially the wife

Conclusion: Guideline for Waiving Cooling Off Period

The court noted that the parties have expressed their intention to remarry and both of them stated that all efforts at reconciliation had failed and they are unwilling to live together as husband and wife. They had even settled the amount of permanent alimony, which is Rs.36,00,000/- in lump sum in lieu of dowry articles, present, past, and future maintenance to the respondent-wife. This landmark judgment by the Punjab & Haryana High Court provides a clear guideline for waiving the cooling off period in divorce proceedings, paving the way for a more efficient and empathetic legal process.

The post Waiving the Cooling Off Period in Divorce Proceedings: A Legal Perspective appeared first on Bhatt & Joshi Associates.

Section 13B of the HMA Act 1955 provides for divorce by mutual consent.

The Conditions required under section 13B of the Hindu Marriage Act are as follows: 

(i) Husband and wife have been living separately for a period of one year or more,

(ii) That they are unable to live together,

(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved.

Under these circumstances a Divorce by Mutual consent can be filed.

Advantages of mutual divorce:

Divorce By Mutual consent saves time, money and energy for both,

Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen in public.

What is Divorce by mutual consent?

Divorce By Mutual Consent is as the name suggests is when both parties i.e. husband and wife come to a mutual understanding that the marriage be dissolved amicably.

How does it work:

In all there are two court appearances in a mutual divorce

1. First A joint petition signed by both parties is filed in court .
2. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Hon’ble Court.
3. Thirdly The 6 month period is given for reconciliation, (the hon’ble court gives a chance to the couple to change their mind)
4. Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don’t agree to come together. Then the parties may appear for the second motion for the final hearing.
5. Finally Divorce decree will be granted as the Hon’ble Court may deem fit.

Here are the list facts to be mutually agreed upon in the petition for Divorce by Mutual Consent:

Firstly: Custody of child;

Secondly: Alimony (lump sum maintenance to be decided between parties);

Thirdly: Returns of items (dowry, streedhan, etc); and

Fourthly: Litigation expenses.

The mutual consent divorce petition should also contain a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce.

The court will pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:

(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;

(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and

(c) The petition is not withdrawn by either party at any time before passing the decree.

If the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent.

In a mutual consent divorce petition, the marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, that means Both parties have to agree to Divorce.

What does Divorce by Mutual Consent Mean?

Divorce by Mutual Consent means when both Husband and wife has agreed amicably amongst themselves that they cannot live together anymore and that the best solution is to Divorce, without putting forth any allegations against each other, in the court of law, than such a Divorce petition presented jointly before the honourably court, is known as mutual consent Divorce, it is the quickest form of divorce in India.

1. Formalities to be complied with

Under this section a decree for dissolution of marriage solemnized under this Act can be passed by a District Court on compliance with the following formalities:

(a) A petition is to be presented jointly by the parties to the marriage.

(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.

But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.

(c) The parties have failed for any reason whatsoever to live together. In other’ words, no reconciliation or adjustment is possible between them.

(d) The parties have freely consented to the agreement of dissolution of marriage.

(e) The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred. But in Sureshta Devi v Om Prakash 5 it has been held that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.

(f) The court must be satisfied as to the averments in the petition after making inquiry and after hearing the parties which are initiated by a joint motion of the expiry of six months from presentation of the petition. The expression “after hearing the parties” appearing in sub-section (2) of section 28 of the Act does not require the presence of the parties before the court. Affidavit-evidence is sufficient for this purpose by virtue of section 40 of the Act which attracts the ­ Code of Civil Procedure 1908 and which provides in Order 19 for proof of any point by affidavits.

1. Appeal and revision.

The maintainability of appeal though open to question, order is open to revision either under s. I IS of the Code of Civil Procedure or under Art. 227 of the Constitution of India.

1. Ground of divorce by mutual consent

The ground of divorce by mutual consent is to be found in s. 28 of the Special Marriage Act 1954, and in s. 13B of the HMA. The Hon’ble court cannot read that ground under s. 10 of the Divorce Act 1869, by adopting a policy of “social engineering”.

1. Reconciliation necessary

Even if dissolution of marriage by mutual consent is sought by a joint petition of the husband and the wife still it is incumbent on the court to comply with the mandatory provisions of s. 34(2) of the Act to make attempt for reconciliation between the parties.

To learn more about family laws here are a list of articles:

Preeti Singh v Sandeep Singh – Supreme Court Guidelines on Mutual Consent Divorce

Divorce: To get a judgment of divorce, you have to make arrangements for your property, your children, and support (if any). If you have a high degree of conflict, it is also about keeping the peace and protecting you, your children and your property.

Restitution of Conjugal Rights: Section 1(1) of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights

Recognition of Equality Marriage: Marriage is an eternal bond, the essence of family. In most parts of the world, the idea of marriage is confined strictly to union of two biologically different sexes, one man and one woman, the basic formula for propagating the species

Family Courts in India: There are also cases of misuse of provisions like Section 498A of the Indian Penal Code, Protection of Women from Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few

 Divorce under Muslim Law: A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaaq.

Divorce by mutual consent: A consent decree per se in matrimonial matter is not collusive. As would be evident from the legislative intent of s. 13B of the Act

Mediation In Divorce: With an alarming increase in the number of couples heading for divorce in India, judges have now stood up to save the sanctity of marriage

Supreme court Judgments on Divorce laws in India:

Sexual harrasment | Woman has no right to eye her mother-in-law’s property for maintenance | Police and court cannot impound passport but can seize it for at most 4 weeks | Quash of 498a filed 10 years after customary divorce and alimony | Husband gets divorce on grounds of cruelty | Quash of 498a citing abuse of court process (NRI) | Customary payments, gifts not dowry | Requirements for a Foreign Divorce be valid in India | Crime against woman Judgments | A.K Kraipak v. Union of India

The post What is Divorce by Mutual Consent? appeared first on Bhatt & Joshi Associates.