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Madras High CourtCRP(MD)/2075/2022allowed

M.Alagumalai v. Nil

2022-10-13Honourable Mr Justice B.Pugalendhi9 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.10.2022

CORAM:

THE HONOURABLE MR.JUSTICE B.PUGALENDHI 1.M.Alagumalai 2.P.Prakashini : Petitioners Vs NIL : Respondent PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 26.09.2022 passed in I.A.No.1223 of 2022 in H.M.O.P.No.1021 of 2022, on the file of the Family Court, Madurai, by allowing this Civil Revision Petition and further issue a direction to the learned Family Court, Madurai to dispose H.M.O.P.No.1021 of 2022, on the file of the Family Court, Madurai filed by the petitioners seeking divorce by mutual consent within the time frame to be fixed by this Court. For Petitioners : Mr.M.Kannan 1/9

ORDER

This Civil Revision Petition is filed as against the impugned order passed by the learned Judge, Family Court, Madurai, in I.A.No. 1223 of 2022 in H.M.O.P.No.1021 of 2022, dated 26.09.2022. 2.The petitioners are husband and wife. Their marriage was solemnized on 31.03.2021 as per Hindu customs and rituals. After the marriage, their relationship got strained and they decided to separate mutually. Since the second petitioner is working at Saudi Arabia, she cannot come back to India for about 2 years. Hence, the petitioners have filed H.M.O.P.No.1021 of 2022 before the Family Court, Madurai, under Section 13 B of the Hindu Marriage Act, for a decree of divorce by mutual consent. They also filed I.A.No.1223 of 2022, under Section 10 - B(2) of the Hindu Marriage Act, seeking waiver of the waiting period of six months in H.M.O.P.No.1021 of 2022. The trial Court dismissed the application. Aggrieved over the same, this petition has been filed. 2/9

3.The learned Counsel appearing for the petitioners by referring the decision of the Hon'ble Supreme Court in Amardeep Singh Vs Harveen Kaur reported in 2017 (4) RCR (Civil) 608 and Amit Kumar Vs Suman Beniwal [C.A.No.7650 of 2021] submits that statutory cooling off period has to be waived in cases of mutual consent divorce. Since the petitioners have been living together only for three months, the statutory cooling off period shall be waived, as per the guidelines of the Hon'ble Supreme Court.

4.Heard the learned Counsel for the petitioners and perused the materials.

5.It is admitted that the marriage between the parties have been solemnized on 31.03.2021 and they claim that they have been living together only for three months after the marriage. In a short span of time they have separated. They have filed a petition in H.M.O.P.No.1021 of 2022 before the Family Court, Madurai seeking divorce on mutual 3/9

consent. They have also filed an application to waive the statutory cooling-off period. The trial Court dismissed the application on the ground that no material to show that effective mediation and reconciliation were given to the parties for reunion. Aggrieved over the same the present civil revision petition has been filed. It is also reported that the second petitioner is working at Saudi Arabia as Nurse and she was granted visa only upto 19.11.2022.

6.The question that arises for consideration is to waive-off the cooling period, as required under Section 13B(2) of the Act. The Hon'ble Supreme Court, in the decision in Amardeep Singh's case (supra), has held as follows:- "16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The 4/9

object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

... ... ...

18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following : i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the 5/9

Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony. ... ... ...

21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation."

7.The above guidelines say there is an obligation on the part of the Courts to make last-minute efforts to save the marriage at any cost. The Courts want to save the matrimonial life rather than breaking it. In our society, marriage is considered as a sacred one and not a legal 6/9

contract. With this view in mind, the law makers fixed the period of six months, so as to enable the parties to come together for reunion, instead of mutual divorce. But, in cases, where there is no possibility of reunion, especially after the divorce by mutual consent process has been initiated, the facts of the case has to be considered independently. A broken iron can be joined together, but not broken hearts and granting divorce to a couple, after considerable period of time, is nothing but operation success but patient died. Irretrievable marriage should come to an end at the earliest possible of time, so that the couple could have a better opinion to start their life, afresh.

8. Since it has now been held by the Hon'ble Supreme Court that the cooling off period mentioned in Section 13B(2) of the Act is not mandatory but directory, though it was once compulsory for mutual consent divorce and when there is no possibility of parties resuming cohabitation, this court is of the view that the cooling off period in this case is to be waived.

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9. In view of the above, this civil revision petition is allowed and the six months cooling-off period is waived and the trial Court shall decide the main divorce petition, independently and dispose of the same, after ascertaining the bonafideness of the consent of the parties. No costs.

13.10.2022 Index: Yes / No Internet : Yes vrn To The Family Court, Madurai Issue on 08.11.2022 8/9

B.PUGALENDHI, J.

vrn 13.10.2022 9/9