Ganesh Ashok Sabale v. Vaishnavi W/O Ganesh Sabale

Bombay HC1 Apr 2024WP/3371/2024

Case brief

AI extract

What is this about?

Waiver of six-month cooling period Section 13B(2) Hindu Marriage Act 1955; divorce by mutual consent; Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 applied; separation over one year before first motion; mediation and conciliation efforts failed; alimony settled and partly paid; no children; no coercion; writ petition allowed; order of 8th Joint Civil Judge (Senior Division) Aurangabad dated 22.02.2024 below Exhibit-8 in HMP No.66/2024 quashed and set aside; Bombay High Court Aurangabad Bench; Arun R. Pedneker J.; 2024:BHC-AUG:7082; WRIT PETITION NO. 3371 OF 2024.

What did the court decide?

Waiver of the six-month statutory cooling period under Section 13B(2), Hindu Marriage Act, 1955 granted; impugned trial-court order dated 22.02.2024 quashed and set aside; application at Exhibit-'A' of the writ petition allowed. ¶¶38

Ganesh Ashok Sabale Vs Vaishnavi W/O Ganesh Sabale — Matrimonial and Divorce | Bombay HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the six-month statutory cooling period under Section 13B(2) of the Hindu Marriage Act, 1955 should be waived for the parties to HMP No.66/2024 seeking divorce by mutual consent, whose joint waiver application was rejected by the trial court.

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Court's answer

On the parties' submissions and the court's interaction with them — separation exceeding one year, failure of all mediation/conciliation efforts including the court-appointed mediator, no children out of the marriage, alimony settled and partly received, and absence of coercion — this is a fit case to exercise discretion to waive the six-month cooling period under Section 13B(2) of the Hindu Marriage Act, 1955.

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Ratio / Principle

The writ petition is allowed; the impugned order dated 22.02.2024 passed below Exhibit-8 by the 8th Joint Civil Judge (Senior Division), Aurangabad in HMP No.66/2024 is quashed and set aside, and the application at Exhibit-'A' of the writ petition (waiver of cooling period) is allowed.

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Detailed headnote1 paragraphs

Hindu Marriage Act, 1955 – S. 13B(2) – Divorce by mutual consent – Waiver of six-month statutory cooling period – Joint application of spouses rejected by 8th Joint Civil Judge (Senior Division), Aurangabad (order dt. 22.02.2024, below Exh. 8, HMP No.66/2024) – Parties married 14.02.2022, separated since 30.05.2022 i.e. over one year before first motion, no children, mediation including court-appointed mediator failed, alimony settled and part-payment received, no coercion confirmed on court interaction – Relying on Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 (paras 18 and 21: period under S. 13B(2) directory, not mandatory), discretion exercised – Writ petition allowed; impugned order quashed and set aside; waiver granted (Bombay High Court, Aurangabad Bench; Arun R. Pedneker, J.; 01.04.2024).

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2024:BHC-AUG:7082

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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18 WRIT PETITION NO. 3371 OF 2024

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GANESH ASHOK SABALE

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VERSUS

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VAISHNAVI W/O GANESH SABALE

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Advocate for the Petitioner : Mr. Arvind Ramnath Kawade Advocate for Respondent : Mr. P. A. Pisal

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CORAM : ARUN R. PEDNEKER, J. DATE : 01^st APRIL, 2024

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PER COURT:

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Heard.

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By the present petition the petitioner seeks to challenge the order dated 22.02.2024, below Exhibit 8,in HMP No.66/2024, passed by the 8^th Joint Civil Judge (Senior Division), Aurangabad, thereby rejecting the joint application filed by the petitioners and the respondent under Section 13(B)(2) of the Hindu Marriage Act, 1955 to waive of the 6 months cooling period.

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Brief facts giving rise to the petition can be summarised as

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under:-

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A. The petitioner and the respondent married on 14.02.2022, as per the hindu rituals. There is no child born out of the wedlock.

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B. On 30.05.2022, the petitioner and the respondent on account of the matrimonial dispute started living separately. Thereafter, there were various attempts made by the family members and well wishers to reach out settlement in the marriage and reconcile the parties. However, the parties could not come together.

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C. Since the parties were residing separate for more than a year and, that, there is no reconciliation between them, they file HMP No.66/2024 before the Civil Judge Senior Division, Aurangabad under Section 13(B) of the Hindu Marriage Act, 1955 for divorce by mutual consent.

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D. The matter was then referred to the mediator, however, the mediator could not bring the settlement between the parties.

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E. On 15.02.2024, both the parties i.e. the petitioner and the respondent filed their affidavits and evidence on record along with application seeking waiver of

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6 months statutory cooling period. The trial court by order dated 22.02.2024, rejected the application. Hence, the writ petition is filed in this court.

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It is contended by the parties that the Hon’ble Supreme Court in the case of Amardeep Singh Vs. Harveen Kaur, (2017) 8 SCC 746 submits that the stipulated period of cooling can be waived in certain circumstances and relies on para 18 and 21 as under:-

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“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:

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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?

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ii) all efforts for mediation / conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure / 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;

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

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iv) the waiting period will only prolong their agony.

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Since we are of the view that the period mentioned in Section 13B (2) is not mandatory but directory, it will be

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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.”

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The parties submits that they have settled their dispute that in terms of the above requirement the parties have already separated for 1 year. Thereafter, after filing of the petition all efforts for mediation has failed and the court appointed mediator also could not bring about the reconciliation in the matter. There are no issues out of the marriage and that the alimony aspect is also settled between the parties. The waiting period will only prolong their agony and that this court should exercise the powers under Section 13(B)(2) of the Hindu Marriage Act, 1955 and to waive of the cooling period.

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Both the parties were present before me and were identified by the respective advocates.

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On my interaction between the parties, the parties have submitted that there is no coercion and that no children out of the marriage, so also, the alimony is already been decided and that she has already received the part of the alimony and the balance would be received at the final stage of the Petition.

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In view of the submissions, I feel that this is a fit case to exercise discretion for waiving cooling period. In the result, I pass the following order:-

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ORDER

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I] The Writ Petition is allowed.

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II] The impugned order dated 22.02.2024 passed below Exhibit-8 by the learned 8^th Joint Civil Judge (Senior Division), Aurangabad in the HMP No.66/2024 is quashed and set aside.

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III] The application at Exhibit – ‘A’ of the writ petition is allowed.

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The Writ Petition stands disposed of accordingly.

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[ARUN R. PEDNEKER, J.]

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marathe

Ganesh Ashok Sabale v. Vaishnavi W/O Ganesh Sabale

Case brief

What is this about?

What did the court decide?

Ganesh Ashok Sabale v. Vaishnavi W/O Ganesh Sabale

Case brief

What is this about?

What did the court decide?

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What the court decided

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