The Bombay high court allowing a joint plea for waiver of the statutory period before divorce by mutual consent gave the order considering the circumstances of the present case, where the woman was pregnant from another man’s child.
The divorcing parties registered their marriage in 2014 and initiated divorce proceedings in the family court earlier this year under section 13B of the Hindu marriage act,1955. The family court, however, refused to waive the statutory period of six months which is provided under section 13B(2) of the Hindu Marriage Act. A period of six months is given before the divorce for the married couple to rethink and contemplate over their decision, so that court only grant the divorce when there is no chance of reconciliation.
In the present case before the high court the parties was staying separately and independently since December 2018. Since they were unable to live together, both with mutual consent decided to dissolve the marriage. The petitioner’s counsel pointed out the urgency of the matter by stating the fact that the petitioner was pregnant with another man’s child and she intended to marry and settle as soon as possible due to which it was important that the statutory period was waived. The respondent also agreed to the petitioner’s submissions and supported the waiver of the statutory period. He further submitted that since parties were already residing separately and already attended councillor, the waiver of the period was only appropriate.
The single-judge bench of justice Nitin W Sambre referred to the Supreme Court case of Amardeep singh vs. Harveen kaur where it was held that the statutory period was not mandatory but only directory which granted the court discretion to waive the statutory period in certain cases where “there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”
Thus considering the circumstances in the present case the court said “In the aforesaid backdrop, it will be appropriate in fitness of things, particularly having regard to the medical/health condition of the Petitioner, to allow the joint application moved for waiving the period as specified under Section 13B of the Hindu Marriage Act.” the court allowed the joint request and quashed the impugned order waiving the statutory period of 6 months. The court allowing the petition remarked regarding the divorce case in the family court that “Let the Family Court decide the application for divorce as expeditiously as possible and if required by directing parties to attend the Family Court Proceedings physically or through video conferencing as it deems fit in the facts and circumstances of the case.”
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