Cooling period for divorce not mandatory: High Court

S Shyam Prasad | NT

Bengaluru: When a couple has taken a conscious decision to separate, forcing them to undergo a cooling period is not necessary, the High Court of Karnataka has ruled.

Waiving off the cooling period of six-months after marriage for filing a divorce application and another sixmonths of cooling period for granting of divorce, the court allowed the two engineers aged 37 and 32 to separate.

“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,” the HC bench of Justice G Narendar and Justice Vijaykumar A Patil said.

The HC in its judgement said, “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.”

In the present case the HC noted that both were engineering graduates with their own careers who had made up their mind and understood the situation.

“The pleadings in the petition as well as the application for seeking waiver of cooling period makes it clear that the parties have realised 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 court noted.

It also noted that friends and family tried in vain to reconcile their relationship.

“The parties to the proceedings are between the age group of 32 to 37 years and they have specifically averred that they intend to concentrate on their career and decided to move on in their respective life. The said decision of the appellants is a conscious decision and the parties are quite mature about the consequences of the said decision,” the HC said.

The couple had a registered marriage in November 2022 under the Special Marriage Act. Immediately after marriage they realised that they had strong likes and dislikes and were not a compatible couple.

They applied for divorce on mutual consent on February 24, 2023, and sought to reduce the one year cooling off period. But on March 25, 2023, the Family Court in its order rejected their application for reducing the cooling off period.

The Family Court relied on the six months cooling period after marriage to file for divorce and another six months cooling period after filing the divorce application provided in the Act.

The couple approached the HC which gave it judgement recently. Their advocate argued that the cooling off period specified under Section 28 of the Act is a directory and not mandatory.

Allowing the petition, the HC waived the statutory period contemplated under Section 28 of the Special Marriage Act.