High court waives 'cooling off' period
By Menaka Rao / DNAThursday, February 25, 2010 0:46 IST Mumbai:
In a significant order, the Bombay high court on Tuesday held that a couple who convert a contested divorce petition into a plea for divorce by mutual consent need not wait six months for dissolution of marriage. Under section 13(B) of the Hindu Marriage Act, divorce by mutual consent cannot be granted until at least six months after a petition is filed. But justice Roshan Dalvi said this condition needs to be seen differently in cases where a warring couple agrees to settle for divorce by mutual consent. In most such cases, the couple is already separated for more than a year while the litigation is on. “This judgment will affect a majority of the cases in the family court and ensure a uniform view by the courts,” said advocate Usha Tanna, who appeared for one party to the case in the trial court. The reasoned order is yet to be given to both parties. Tanna said about half of all couples settle their cases before the trial begins while another 40% convert their petitions after the trial starts. “Only 10% continue to contest their cases,” she said. Businessman Siddharth Jain, 36, had filed for divorce in 2007, two years after his marriage, on grounds of cruelty. His wife Sudha, 36, a designer, contested the petition. After the trial began, both parties decided to file for divorce by mutual consent. Siddharth agreed to pay Rs5 lakh to Sudha as one-time alimony. This was in December last year. The couple then jointly applied for waiver of the six-month “cooling off” period as they were separated since May 2006. But the family court cited a a 2009 judgment of the Supreme Court, which said a trial court cannot waive this period. “We argued that when both parties have withdrawn their allegations, there is no need to wait for six months,” said advocate Uday Warunjikar, who appeared for the businessman in the high court. “Nothing is left to be decided. The 2009 case is not applicable here.” Lawyers at the family court welcomed the ruling. “People with pending matters want to settle the cases and get on with their lives,” said Veena Gowda. She said the judgment may help reduce the backlog of cases in the family court. Over 10,000 petitions are pending there.
(Couple’s names have been changed)
D. Arun Kumar, New Delhi