Bombay HC Waives Off 6 Month Cooling Period For Divorce

It is definitely most refreshing to note that the Bombay High Court in a most learned, laudable, landmark, logical and latest oral judgment titled Sneha Akshay Garg And Akshay Sunil Garg Vs Nil in Writ Petition No. 9369 of 2024 and cited in Neutral Citation No.: 2024:BHC-AS:31047 in the exercise of its civil appellate jurisdiction that was pronounced as recently as on July 25, 2024 has waived off the six-month cooling-off period and granted divorce to a couple maintaining that a realistic approach needs to be adopted, keeping in mind the social conditions. It must be mentioned here that the Bombay High Court noted that it is the duty of the court to assist the parties by exercising the discretion to waive the cooling off period and free them from the stress of their application of divorce pending. It must be noted that a Single Judge Bench of the Bombay High Court comprising of Hon’ble Ms Justice Gauri Godse was hearing an appeal that had been filed by a Pune-based couple against the order of the family court refusing to waive the six-month cooling-off period.

While taking the most progressive, pragmatic and persuasive stand, the Bench noted in its order that, “Seeing the rapid changes in an evolving society, the judiciary would play a vital role in assisting the parties seeking the dissolution of their marriage by mutual consent. Thus, keeping in mind the changing social conditions, a realistic approach needs to be adopted.” It must be mentioned here that the couple got married in 2021 and they had also started living separately due to irreconcilable differences.

As anticipated, they later then filed for divorce contending strongly that the six-month period itself is causing agony. We thus see that the Bench set aside the order of the Family Court and took the decision to grant divorce to the couple while laying down that once the court is satisfied that the parties have taken a conscious decision to separate and move ahead and that that there is no possibility of reconciliation, the Court should adopt a realistic approach. Very rightly so! There is just no point in prolonging the immense agony and pain when the relations have reached to a point of “no return”.

At the very outset, this remarkable, robust, rational and recent oral judgment authored by a Single Judge Bench of the Bombay High Court comprising of Hon’ble Ms Justice Gauri Godse sets the ball in motion by first and foremost putting forth in para 1 that, “Heard. Rule. Rule made returnable forthwith. By consent of the parties, taken up for final disposal.”

To put things in perspective, the Bench envisages in para 2 that, “This petition takes exception to the order passed by the Family Court, Pune, on 4th June 2024, rejecting the petitioners’ application for waiver of the cooling off period provided under section 13–B of the Hindu Marriage Act, 1955 (‘the said Act’). The petitioners got married on 18th July 2021 as per Hindu rituals in Pune. It is the petitioners’ case that there were differences between them after a period of one year, and hence, they started residing separately on 10th October 2022. Though reconciliation attempts were made by their well-wishers, friends and families, they failed, and ultimately, they decided to seek a divorce by mutual consent. In terms of the amicable settlement between the parties, petitioner no. 2 agreed to pay an amount of Rs 10 lakhs towards permanent alimony. Accordingly, petitioners filed a petition for dissolution of their marriage by mutual consent in the Family Court at Pune on 13th March 2024 and the same was registered on 20th March 2024. Since the parties had already been residing separately since 10th October 2022, they also filed an application for waiver of the six months period and requested for a decree for the dissolution of their marriage. The said application is rejected by the Family Court on 4th June 2024. Hence, this petition.”

Most significantly, the Division Bench minces just no words absolutely to encapsulate in para 9 what constitutes the cornerstone of this notable judgment postulating that, “Normally, we come across cases where parties continue to fight, though there is no possibility of reconciliation. In such cases, the parties are encouraged to explore the possibility of an amicable settlement and are even referred for mediation so that they can put an end to the litigation. However, when the parties apply for divorce by mutual consent, they have taken a conscious decision to separate and thus have shown a reasonable approach. Such a decision shows that they have decided to move ahead, and thus, there is every chance of rehabilitation. The newly married couple not being able to reside together, or a couple married for quite some time is unable to continue to stay together for various reasons, itself would be a mental agony. Thus, once the Court is satisfied that the parties have taken a conscious decision to separate and move ahead and that there is no possibility of reconciliation, the Court should adopt a realistic approach and exercise the discretion to waive the waiting period. Hence, it is the duty of the Court to assist the parties by exercising the discretion to waive the cooling off period and free them from the stress of their application for divorce remaining pending.”

It is worth noting that the Bench notes in para 10 that, “In the present case, I have interacted with both petitioners who are present before me today. On making a specific query with regard to the possibility of reconciliation, both the petitioners reiterated that they are unable to sort out their differences and have made a conscious decision to separate. They further submitted that in spite of making several efforts, they were unable to reconcile their differences and would not be able to stay together. The petitioners further inform that they both are well settled in their independent professions, and the pendency of the petition is causing mental agony. Hence, they request that the cooling off period be waived and an order for dissolution of their marriage be also passed by this Court.”

Do note, the Bench notes in para 11 that, “Petitioner no. 1 confirms that as per the mutual agreement between the parties, she has received a lump amount of Rs 10 lakhs towards permanent alimony. She further submits that she has no claim or any grievance against petitioner no. 2. Petitioner no. 2 also confirms that he has no grievance against petitioner no. 1 and that the order be passed for dissolution of their marriage.”

Most sagaciously, the Bench observes in para 12 that, “Petitioner no. 1 is 29 years of age, and petitioner no. 2 is 28 years of age. As stated by them, both are independently well-settled in their profession. On interacting with the petitioners and considering the reasons stated by them in the application for waiver of the cooling off period, I am satisfied that the parties are unable to reconcile and have, therefore, decided to separate. Thus, I am satisfied that the pendency of the petition is causing mental agony and that there is no point in keeping the marriage petition pending. In view of the aforesaid, I am also satisfied that there is no possibility of any reconciliation. Thus, to avoid any further loss of time, I am not inclined to relegate the parties to the Family Court for passing the order on the main application under section 13–B(1) of the said Act.”

Be it noted, the Bench notes in para 13 that, “Considering the facts of the case, the view taken by this Court in the decision of Pratik Kutte would squarely apply to the present case. This Court, in the case of Pratik Kutte, has observed in paragraphs 9, 10 and 11 as under;

“9……..In view of the order rejecting the application for waiver, the petitioners’ application under section 13-B(1) for dissolution of their marriage has remained pending before the Family Court. Considering the aforesaid, I am satisfied that the petitioners are entitled to waiver of the waiting period of six months provided under section 13- B(2) of the said Act.

“10……Hence, considering the facts of the case, I find it appropriate to take a pragmatic view and not send the parties to the Family Court only for the purpose of passing a final order. If only for a technical purpose, the parties are relegated to the Family Court, the very object of making an application for dissolution of marriage under section 13-B(1) and the application for a waiver under section 13-B(2) would be frustrated”.

11. Hence, I find it fit to exercise the jurisdiction under Article 227 of the Constitution of India to correct the impugned order by waiving the waiting period and also pass further orders for the dissolution of the marriage…..”.”

Finally and as a corollary, the Bench then concludes by holding in para 14 that, “For the reasons stated above, the following order is passed:

O R D E R

(I) The impugned order dated 4th June 2024 passed below Exhibit 8 by the learned Judge, Family Court No. 2 Pune in Petition No. F-464/2024 is quashed and set aside.

(II) Application at Exhibit 8 in Petition No. F–464/2024 filed before the Family Court No. 2, Pune, for six months waiver under section 13–B(2) of the said Act is allowed, and the six months waiting period is waived.

(III) The application for dissolution of marriage under Section 13–B of the said Act in Petition No. F–464/2024 filed before Family Court No. 2, Pune is allowed.

(IV) Marriage solemnized between the parties on 18th July 2021 is dissolved.

(V) The Family Court, Pune, shall draw a decree for divorce in terms of the dissolution of marriage granted by this order.

(VI) The concerned Judge of the Family Court at Pune shall issue necessary directions for drawing up the decree in terms of this order upon the production of a certified copy of this order without insisting on the parties’ presence.

(VII) The writ petition is allowed in the aforesaid terms.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.