The Delhi High Court recently comprising of a bench of Justice Pratibha M. Singh opined that in light of undue delay in passing of motion by the Family Court, the six months cooling off period in mutual consent divorce cases can be waived by the Court under special circumstances. (Kavita Malik v State of NCT)
Facts of the Case
The present petition was filed by Ms. Kavita Malik, who was married to Mr. Amit Malik. Due to various reasons, the parties did not wish to continue with the marriage and accordingly, they agreed for dissolution of their marriage by mutual consent.
The grievance of the Petitioner is that she had entered into a Memorandum of Understanding with her husband and the various terms and conditions which were to be abided by the parties were given effect to. Both parties are living separately since 2nd June, 2018 but are being forced to continue their marriage.
All future plans of the parties have been put on hold and these facts have not been appreciated by the Family Court which has acted with complete callousness in not recording the order on the first motion. On the basis of this mutual understanding, the parties through their counsels had filed.
On 17th November, 2020, the Petitioner moved an application seeking waiver of the cooling-off period of six months.
Contention of the Parties
The counsel for the petitioner contended the order specifically recorded that the joint statement of the Petitioners had been recorded. The physical record also has signed copies of the statements by both parties, duly verified by both the counsels for the parties as well. There is no explanation as to why the order on the first motion considering the fact that the physical copy of their statement was already signed. The said order has never been passed even after almost 8 months delay, the parties had moved for waiver of the cooling-off period, which too could not happen.
Courts Observation & Judgment
The high court called for the record from the lower court and found the order passed on July 20, 2020, by the family court specifically noted that the joint statement of the petitioners had been recorded.
Considering that the physical copy of their statement was already signed, the court said it was “completely inexplicable” as to why the order on the first application was not passed and asked if there was any formality to be completed by the parties.
The bench referring to the judgment passed by the Supreme Court in the case of Amardeep Singh vs Harveen Kaur, said that it was clear that the six-month cooling-off period under Section 13B of the Hindu Marriage Act could be waived by the court under special circumstances.
The court noting the facts of the present case the parties have been living apart from 2018 and have also finally settled their disputes said there was no reason as to why the family court did not pass orders on the first motion after recording the statements of the parties and after the physically signed copy had been placed on record.
“Simply adjourning the matter on the said date i.e., 20th July 2020, without passing orders on the first motion has resulted in turning the clock back for the petitioner”, the bench said, adding that the parties could not be put to such grave inconvenience due to the actions of the family court which had failed to pass orders, especially given that the divorce, in this case, was one of mutual consent.
The Court directed the family court to pass an order on the first application of mutual divorce, it also asked the Registrar General to look into similar cases where no orders had been passed despite the filing of statements by the parties.
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