[Cites 6, Cited by 0]
Madras High Court
Aswin Dhananjai Krishnaswamy vs Nil on 9 March, 2026
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
CRP No. 938 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09-03-2026
CORAM
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
CRP No. 938 of 2026
1. Aswin Dhananjai Krishnaswamy
S/o Krishnaswamy,
17/7, Ram Nagar first Main Road,
Guruvayurappan Kovil, Nanganallur,
Kancheepuram, Tamil Nadu 600061
2. Jeritza J J Jalish
D/o A.Jayakumar,
No 12, 3rd Block, Grn Apartment, Vijaya
Garden, Priya Nagar, Urapakkam,
State Bank, Urapakkam, Kancheepuram,
Tamil Nadu 603210
..Petitioner(s)
Vs
Nil
..Respondent(s)
PRAYER
Civil Revision Petition filed under Art.227 of Constitution of India,
praying to set aside the docket order dt. 30.01.2026 passed in S.R.No.247/2026
in HMOP No.468/2025 by the Honble Family court Judge at Chengalpattu and
allow this Revision and grant consequential relief to dissolve the marriage
between the petitioners dt. 11.02.2024.
For Petitioner(s): Mr. Ajay Francis Inigo Loyola
For Respondent(s): Nil
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CRP No. 938 of 2026
ORDER
Today, when the matter taken up for hearing, submitting the ratio laid
down in the authorities, the learned counsel for petitioners would submit that
there is no possibility for re-union between the parties inspite of elders advise
and already they have got separated for more than a year and hence, the
marriage is irretrievably broke down. Therefore, the interregnum period of 6
months was prayed to waive before the trial court. But the trial judge has not
inclined to waive the said 6 months period and the said application filed by him
has also been returned by the trial judge holding that six months period has not
been complied. Aggrieved over that, this Civil Revision Petition has been filed.
2. As per the ratio laid down in the authority held in First Appeal
No.4404 of 2025, wherein in paragraphs 7 and 8, it has been held as follows :-
“7. It is well-settled that the six months period enumerated in
Section 13B of the Act of 1955 is directory and not mandatory. The
issue is no longer res integra. Apt would be the judgment of the Apex
Court in the case of Amardeep Singh vs. Harveen Kaur reported in
(2017) 8 SCC 746, the following issue was considered and while
dealing with the issue, in paragraphs 16 to 20, it is observed thus:-
“whether the provision of Section 13B of the Act of 1955 laying
down cooling off period of six months is a mandatory
requirement or it is open to the family court to waive the same
having regard to the interest of justice in an individual case.
16. We have given due consideration to the issue involved.
Under the traditional Hindu Law, as it stood prior to the
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statutory law on the point, marriage is a sacrament and cannot
be dissolved by consent. The Act enabled the court to dissolve
the marriage on statutory grounds. By way of amendment in the
year 1976, the concept of divorce by mutual consent was
introduced. However, Section 13B(2) contains a bar to divorce
being granted before six months of time elapsing after filing of
the divorce petition by mutual consent. The said period was laid
down to enable the parties to have a rethink so that the court
grants divorce by mutual consent only if there is no chance for
reconciliation.
17. 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 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. In determining the question whether provision is mandatory
or directory, language alone is not always decisive. The court
has to have the regard to the context, the subject matter and the
object of the provision. This principle, as formulated in Justice
G.P.Sing’s “Principles of Statutory Interpretation” (9th Edn.,
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2004) has been cited with approval in Kailash versus
Nunhkuand ors. 15 as follows :-
“34. ..The study of numerous cases on this topic does
not lead to formulation of any universal rule except this that
language alone most often is not decisive and regard must
be had to the context, subject mater and object of the
statutory provision in question, in determining whether the
same is mandatory or directory. In an oft-quoted passage
Lord Campbell said : ‘No universal rule can be laid down
as to whether mandatory enactments shall be considered
directory only or obligatory with an implied nullification
for disobedience. It is the duty of courts of justice to try to
get at the real intention of the legislature by carefully
attending to the whole scope of the statute to be
considered.”
“For ascertaining the real intention of the legislature’,
points out Subbarao, J., ‘the court may consider inter alia,
the nature and design of the statute, and the consequences
which would follow from construing it the one way or the
other; the impact of other provisions whereby the necessity
of complying with the provisions in question is avoided; the
circumstances, viz., that the statute provides for a
contingency of the non-compliance with the provisions; the
fact that the non-compliance with the provisions is or is not
visited by some penalty; the serious or the trivial
consequences, that flow therefrom; and above all, whether
the object of the legislation will be defeated or furthered’. If
object of the enactment will be defeated by holding the same
directory, it will be construed as mandatory, whereas if by
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holding it mandatory serious general inconvenience will be
created to innocent persons without very much furthering
the object of enactment, the same will be construed as
directory”
19. 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
Sec.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
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.
The waiver application can be filed one week after the first motion
giving reasons for the prayer for waiver. If the above conditions are
satisfied, the waiver of the waiting period for the second motion will
be in the discretion of the concerned court.
20. 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
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cohabitation and there are chances of alternative rehabilitation.”
8. The Apex Court while considering the object behind and
provisions of the Act has held that the court dealing with the matter
if is satisfied that a case is made out to waive the statutory period
under Sec. 13B(2), it can do so after considering the parameters
indicated in paragraph 19. The Apex Court, has also observed that it
would be open to the parties to file an application seeking waiver of
the cooling-off period one week after the first motion, giving reasons
for the prayers.”
3. As per the ratio laid down by this court in the authority held in
C.R.P.No. 93 of 2021 dated 16.02.2021, it has been held as follows :-
“10. However, we find that the question whether Section 13B(2) is
to be read as mandatory or discretionary needs to be gone into.
11…….
12…..
13. Learned amicus submitted that waiting period enshrined under
Section 13(B) 2 of the Act is directory and can be waived by the
court where proceedings are pending, in exceptional situations.
14. The Court must be satisfied that the parties were living
separately for more than the statutory period and all efforts at
mediation and reconciliation have been tried and have failed and
there is no chance of reconciliation and further waiting period will
only prolong their agony.”
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4. Considering the submissions made on the side of Revision Petitioner as
well as the ratio laid down in both cases, the parties were living separately for
more than the statutory period and all the efforts at mediation and reconciliation
was failed, there is no chance for reunion. They have also got no children out of
marriage. Further, the waiving period will only prolong their agony, but the trial
judge failed to take note of the same. Therefore, the observation made by the
trial judge in SR.No. 247 of 2026 in HMOP No. 468 of 2025 is set aside. The
trial judge is directed to take the waiver application on file and to consider
afresh the submissions made on the side of Revision Petitioner and dispose the
case as early as possible within a period of four weeks from the date of receipt
of copy of this order. Accordingly, this Civil Revision Petition is disposed of.
No costs.
09-03-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
RPP
N.B. : Issue the order copy on 10.03.2026
To
The Family Court, Chengalpattu.
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T.V.THAMILSELVI J.
RPP
09-03-2026
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