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2022 DIGILAW 3177 (MAD)

T. Kagendran v. Sujatha

2022-09-06

B.PUGALENDHI

body2022
JUDGMENT (Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 12.08.2022 passed in I.A.No.148 of 2022 in H.M.O.P.No.181 of 2022 on the file of the learned Subordinate Judge, Thirumangalam.) 1. This Civil Revision Petition is filed against the order dated 12.08.2022 passed in I.A.No.148 of 2022 in H.M.O.P.No.181 of 2022 by the learned Subordinate Judge, Thirumangalam. 2. The petitioners herein are husband and wife. Their marriage was solemnized on 14.09.2020 as per Hindu customs and rituals. After the marriage, their relationship got strained and they decided to separate mutually. Therefore, the husband filed a divorce petition before the Sub Court, Thirumangalam. Though the elders and family members of the petitioners had taken several efforts for re-union, it ended in vain. Now, both have agreed for divorce by mutual consent. Therefore, the husband withdrew the earlier divorce petition and thereafter, both have filed a petition in H.M.O.P.No.181 of 2021 before the Sub Court, Thirumangalam, seeking divorce by mutual consent. Further, they have also filed an interlocutory application in I.A.No.148 of 2022 seeking to waive the cooling-off period on the ground that they have been living separately for more than 21 months and since the first petitioner is working at America, he is not able to attend the court proceedings. However, the trial Court, by order 12.08.2022, dismissed the said petition. Aggrieved over the same, the present Civil Revision Petition has been filed. 3. The learned Counsel for the petitioner further by referring the decision of the Hon'ble Supreme Court in Amardeep Singh Vs Harveen Kaur reported in 2017 (4) RCR (Civil) 608 and Amit Kumar Vs Suman Beniwal [C.A.No.7650 of 2021] submits that statutory cooling off period has to be waived in cases of mutual consent divorce. Since the petitioners have been living separately for more than 21 months, the statutory cooling off period shall be waived, as per the guidelines of the Hon'ble Supreme Court. 4. Heard the learned Counsel for the petitioners and perused the materials. 5. It is admitted that the marriage between the parties have been solemnized in the month of September 2020 and they claim that they have been living separately for more than 21 months. Now they have filed a petition in H.M.O.P.No.181 of 2022 before the Subordinate Court, Thirumangalam, seeking divorce on mutual consent. 5. It is admitted that the marriage between the parties have been solemnized in the month of September 2020 and they claim that they have been living separately for more than 21 months. Now they have filed a petition in H.M.O.P.No.181 of 2022 before the Subordinate Court, Thirumangalam, seeking divorce on mutual consent. They have also filed an application to waive the statutory cooling-off period. The trial Court dismissed the application. Aggrieved over the same the present civil revision petition has been filed. 6. The question that arises for consideration is to waive-off the cooling period, as required under Section 13B(2) of the Act. The Hon'ble Supreme Court, in the decision in Amardeep Singh's case (supra), has held as follows:- “16. 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. 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. 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 Section 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. ... ... ... 21. 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 cohabitation and there are chances of alternative rehabilitation.” 8. The above guidelines say there is an obligation on the part of the Courts to make last-minute efforts to save the marriage at any cost. Even the Courts want to save the matrimonial life rather than breaking it. In our society, marriage is considered as a sacred one and not a legal contract. With this view in mind, the law makers fixed the period of six months, so as to enable the parties to come together for reunion, instead of mutual divorce. But, in cases, where there is no possibility of re- union, especially after the divorce by mutual consent process has been initiated, the facts of the case has to be considered independently. But, in cases, where there is no possibility of re- union, especially after the divorce by mutual consent process has been initiated, the facts of the case has to be considered independently. A broken iron can be joined together, but not broken hearts and granting divorce to a couple, after considerable period of time, is nothing but operation success but patient died. Irretrievable marriage should come to an end at the earliest possible of time, so that the couple could have a better opinion to start their life, afresh. 9. Since it has now been held by the Hon'ble Supreme Court that the cooling off period mentioned in Section 13B(2) of the Act is not mandatory but directory, though it was once compulsory for mutual consent divorce and when there is no possibility of parties resuming cohabitation, this court is of the view that the cooling off period in this case is to be waived. 10. In view of the above, this civil revision petition is allowed and the six months cooling-off period is waived and the trial Court shall decide the main divorce petition, independently and dispose of the same, after ascertaining the bonafideness of the consent of the parties. No costs.