Cooling period waived off by the Court
No point in prolonging marriage when considerable thought is given by married couple on living together or parting ways.
Family Court Bengaluru rejected waiving off application of the couple presented mutually before the Court. However, High Court of Karnataka at Bengaluru appreciated the facts and allowed waiving off cooling period.
Appellants: Sharath Mamani & Kavyashree T M
Miscellaneous First Appeal (MFA)3125 of 2023
Before High Court of Karnataka at Bengaluru
This is the case where Vith Additional Principal Judge Family Court Bengaluru rejected the Divorce Petition filed on 24.02.2023 by Mutual Consent by the Appellants under Special Marriage Act in March 2023. Aggrieved by the rejection of their petition, Miscellaneous First Appeal was preferred by the Appellants before High Court of Karnataka at Bengaluru.
Marriage was solemnized between the Appellants & registered on 16.11.2022 under Special Marriage Act between the appellants. The appellants are Engineer by profession. Immediately after marriage they realized that they are not compatible, have strong likes and dislikes & they could not find any amicable solutions for their differences. Efforts were made by the appellants and their respective family members to resolve the dispute & to unite the appellants, but all efforts went in vain and the appellants decided to live separately.
The appellant filed application under section 28(2) of the Special Marriage Act seeking exemption from one year cooling period on the ground that the Divorce petition is filed by mutual consent.
Observation of the Hon’ble Court
The very object of providing cooling period for filing of the petition and further period of six months from the date of filing the petition is to see that the parties to the proceeding can change their mind and resolve their differences, if after a period of six months, the parties decide to go ahead with divorce, make a motion before the jurisdictional Court in that situation the case is decided on its merits.
The Hon'ble Supreme Court has clearly held that the period mentioned in the statute is not mandatory but it is a directory in nature, however, the Courts while exercising the discretion is required to look into the facts and circumstances of each case as to whether the parties to the proceedings are likely to reunite and resume the cohabitation or in the alternate proceed to consider the case on its merits.
The pleadings in the petition as well as the application for seeking waiver of cooling period makes it clear that the parties have realized that their personality differences are found and there are strong likes and dislikes, despite making best efforts to reconcile, they have decided to part away from the institution of marriage without making any allegation or claims against each other.
The parties as well as the family members have tried their best to bring reunion between the appellants, however, their efforts went in vain.
The parties are in the age group of35-37 & they had averred that they intend to concentrate on their career and decided to move on in their respective life.
The decision of the appellants is conscious decision and the parties are quite mature about the consequences of the said decision.
The possibilities of reconciliation between the appellants are bleak.
It would be appropriate to exercise discretion for waiving off the cooling period by permitting the appellants to move the petition for dissolution of marriage by mutual consent.
It would not be appropriate for the parties to wait unnecessarily for a further period. Any further period would only add to their agony.
Hence, in the interest of justice, it would be appropriate to waive off the statutory period by directing the Family Court to consider the case of the appellants for dissolution of marriage by mutual consent on its merits and in accordance with law.
Hon’ble Mr. Justice G Narender J & Hon’ble Mr. Justice Vijaykumar A Patil J allowed MFA on August 10, 2023 setting aside the order of the Family Court also allowed Interim application for waiving off the statutory period of 01-year cooling period as contemplated u/28 of the Special Marriage Act.
Hon’ble Court directed the Family Court to consider the application of the appellants on its merits and in accordance with law and pass appropriate order.
