Waiving the Cooling Off Period in Divorce Proceedings: A Legal Perspective
A Landmark Judgment by the Punjab & Haryana High Court
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.
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:
- Duration of the marriage
- Duration of separation
- Existence of other proceedings between the parties
- Whether declining such permission will prolong the agony of parties
- Whether there is any misrepresentation or concealment of material facts by parties while seeking such permission
- Whether there is any child born out of the wedlock and how the interest of the child is being secured
- Whether there is any reasonable probability of reconciliation between parties
- 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.