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Munish Kumar Garg (Practise)     28 November 2021

Section 13-b hma - separation period waive off - query

Dear Members,
I am having query that if a Mutual Consent Divorce Petition is being filed by the husband and wife before Family Court but the period of separation of 1 year has not been completed, so we move the Application for Waiving off the period of 1 year at the time of filling the Mutual Consent Divorce Petition, as spouses are living separately since last 4-5 months only, but now query has been raised by the Ld. Family Court that period of 1 year separation is mandatory before presenting the petition so my petition is not maintainable. So members please help me out in my this problem with your auspicious comments or some law points/judgments that Mandatory period of 1 year can be waived-off at the time of filling the Mutual Consent Divorce Petition even though Separation period is less than 1 year.

Note: We cannot change the period of Separation to 1 year from 4-5 months, as in FIR date of Separation has been mentioned.



 5 Replies

YOGENDRA SINGH   29 November 2021

there is no judgement or laws permit to waive 1 years separation period before filing mutual divorce. withdraw the MD and complete your said term and than proceed. else judge ll object it and take legal course or reject your petition.

P. Venu (Advocate)     29 November 2021

What is the relevance of "Note: We cannot change the period of Separation to 1 year from 4-5 months, as in FIR date of Separation has been mentioned"?

 

Munish Kumar Garg (Practise)     29 November 2021

What is the relevance of "Note: We cannot change the period of Separation to 1 year from 4-5 months, as in FIR date of Separation has been mentioned"?
 

Relevance is that as till now there is separation of only 4-5 months between the husband and wife and the specific date of separation has been mentioned in the FIR got lodged at the instance of the wife, therefore, I cannot change the date or show the date of separation of more than a year for filling the Mutual Consent Divorce Petition.

P. Venu (Advocate)     29 November 2021

Why the FIR? Please post complete facts.

Anaita Vas   19 January 2022

In Amardeep  Singh  v.  Harveen  Kaur,  the Supreme Court of India held that the statutory waiting period of at least six months mentioned in Section 13B (2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to the Court to exercise its discretion to waive the requirement of   Section   13B(2),   having regard to the facts and circumstances of the case if there was no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony.

 

Regards,

Anaita Vas

 

 


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