Justice Prateek Jalan noted that there does not appear to be any likelihood of reconciliation between the estranged couple and relied on a verdict of the Supreme Court which had ruled that divorce can be granted without the mandatory 18-month period of separation between the parties.
The apex court had, in 2017, said that the six month “cooling off” period can be waived by the courts in cases of divorce through mutual consent.
The high court allowed a petition by the woman for waiving the statutory period of six months under Section 13B(2) of the Hindu Marriage Act, 1955.
It set aside an order of a family court which had rejected the woman’s application.
The high court said a holistic reading of the apex court’s judgement leads to the conclusion that purposeless marriage which has no chance of reunion ought not to be prolonged.
The man and woman had got married in July 2017 and started living separately from October 25, 2017. During the proceedings under the Domestic Violence Act, 2005, the parties settled their disputes through mediation.
A settlement took place that the marriage be dissolved by mutual consent and it was agreed that the man would pay Rs 3.5 lakh to the woman.
They approached the family court to dissolve the marriage and after completion of first motion, the parties filed an application for waiver of the statutory period of six months.
The woman intended to remarry another person on May 2 but a day before, the family court rejected the plea for wavier of the statutory period of six months.
The high court said the safeguards contained in the statue are intended to explore every avenue of reconciliation and avoid an impulsive decision to break a marriage.
“In the present case, there does not appear to be any likelihood of such reconciliation. The parties have lived separately since October 25, 2017 and the composite period of 18 months expired on April 25, 2019.
“The petitioner (woman) has also expressed her intention to enter into another marriage with a non-resident Indian, who is resident in Australia. The counsel submits that, although the marriage had been fixed for May 2, it could not be solemnised on that date due to the fact that the present divorce proceedings had not concluded,” it said.
It was submitted before the court that the prospective bride-groom is in India until May 10 and the insistence on completion of the waiting period of six months would only prolong the woman’s agony, contrary to the dictum of the Supreme Court.
The court noted that the mandatory period of six months would also be over on May 22, therefore, what is being sought in this petition is a waiver of about 15 days.
“The Supreme Court has clearly held that the period mentioned in Section 13B (2) is not mandatory but directory, and that a court may exercise this discretion in the facts and circumstances of each case, when there is no possibility of the parties to resume cohabitation and there are chances of alternative rehabilitation.
“In the facts and circumstances of the present case, therefore, the woman’s application for wavier of the mandatory period of six months ought to have been allowed,” it said.