Bombay High Court waives cooling off period for estranged couple, says realistic approach needed

PTI, Aug 6, 2024, 12:55 PM IST

Mumbai: Change in social conditions and a rapidly evolving society require a realistic approach to be adopted, the Bombay High Court has said while granting divorce to a couple and waiving the mandatory six months cooling off period.

A single bench of Justice Gauri Godse, in the judgment on July 25, said the waiting period is a “precautionary provision to avoid any injustice to any party and rule out the possibility of reconciliation”.

Once the court is satisfied that the parties have taken a conscious decision to separate and move ahead and there is no possibility of reconciliation, the court should adopt a realistic approach and exercise the discretion to waive the waiting period, Justice Godse said.

A copy of the order was made available on Tuesday.

The court granted a decree of dissolution of the marriage of the Pune-based couple who had sought divorce on grounds of mutual consent and also for the six-month waiting period to be waived.

The purpose of the waiting period needs to be correctly understood while deciding the application for a waiver, Justice Godse noted.

“Seeing the rapid changes in an evolving society, the judiciary would play a vital role in assisting the parties seeking the dissolution of their marriage by mutual consent. Thus, keeping in mind the changing social conditions, a realistic approach needs to be adopted,” the HC said.

The court said it normally comes across cases where parties continue to fight, though there is no possibility of reconciliation.

“In such cases, the parties are encouraged to explore the possibility of an amicable settlement and are even referred for mediation so that they can put an end to the litigation,” the HC said.

However, when the parties apply for divorce by mutual consent, they have taken a conscious decision to separate and thus have shown a reasonable approach, the court noted.

The bench said the petitioners were young persons and keeping their divorce plea pending would cause mental agony.

“The newly married couple not being able to reside together, or a couple married for quite some time is unable to continue to stay together for various reasons, itself would be a mental agony,” the court said.

“It is the duty of the court to assist the parties by exercising the discretion to waive the cooling off period and free them from the stress of their application for divorce remaining pending,” the HC order said.

In the present case, both the man and woman have said that despite attempts, reconciliation was not an option and hence they decided to mutually separate, as per the court.

The couple got married in 2021. However, after a year of marriage, they started living separately due to irreparable differences.

They later filed a petition for divorce with mutual consent. The couple sought the family court to waive the mandatory six months cooling off period.

The family court, however, refused to do so following which they moved the HC.

The petitioners said the pendency of the divorce petition was causing mental agony and hence, requested that the six month cooling off period be waived and an order for dissolution of their marriage be also passed.

Justice Godse waived the six month cooling off period and granted divorce to the couple.