Rosy Sequeira, TNN | Sep 26, 2012,
MUMBAI: The Bombay high court on Tuesday waived the mandatory six-month waiting period for couples, who, during the pendency of their appeal against the family court order, decide to end their marriage through mutual consent. Appeals against family court orders are heard by the high court. The latter can now instantaneously grant divorce.
In 2008, the Bombay HC had ruled that the family court cannot waive the six-month period before granting divorce. Today’s judgment distinguished the earlier verdict and held that in an appeal, the high court could waive the six-month period.
“It will end the mutual misery rather than let it continue,” said Justice V M Kanade, who along with Justice P D Kode, gave their verdict on a man’s appeal against dismissal of his divorce plea by the family court.
During pendency of the appeal, the couple filed consent terms, praying for a decree of divorce by mutual consent. The only hitch was the mandatory waiting period of six months under Section 13 B of the Hindu Marriage Act.
Advocate Vikramaditya Deshmukh, who was asked to assist the court as amicus curiae, submitted that various high courts have taken a view that when an application is filed before an appellate court, seeking its permission to convert an appeal into a petition for divorce by mutual consent, it is not necessary to wait for further six months. He said the waiting period is applicable only for the family court.
Upholding Deshmukh’s submission, the judges in their order said, “We are of the view that it is not necessary for the appellate court to wait for further six months after an application is made seeking conversion of petition for divorce into divorce by mutual consent.”
Accepting the couple’s consent terms, the judges directed that their marriage is dissolved by mutual consent.
The couple married on July 1, 2006, and have two children aged ten and eight years. Since October 2006, they did not cohabit although they were living in the same house. On May 11, 2010, the wife left the matrimonial home. The husband moved the family court in January 2011, seeking divorce on grounds of cruelty. The court dismissed his petition in June 2012. He filed appeal in HC in July 2012. During its pendency, the couple filed consent terms, urging the court to dissolve their marriage by mutual consent. They signed consent terms on September 12, 2012.