A cooling period of six months is a must for a couple before they are granted divorce, even after signing the consent terms, observed the Bombay high court in a recent case. The court was hearing an appeal filed by a woman challenging an order of the family court saying that she was under pressure while signing the consent terms and hence wanted to re-think her divorce.
A division bench of Justices VK Tahilramani and AR Joshi set aside the family court order which granted divorce to the couple within five months of them signing the consent terms, observing that the six month period mentioned in the Hindu Marriage Act keeping some logic in mind.
"The period of six months contemplated by law for giving effect to the application filed by consent under section 13B of the Hindu Marriage Act, 1955, is with some specific logic as to give room to either party to withdraw from the consent, if such a necessity occurs, within six months from the lodging of the application," observed the bench.
The husband had filed for divorce on the ground of cruelty in 2013. Pending the hearing, the couple was sent for mediation. The couple decided to settle the dispute amicably and drew consent terms.
According to the woman's counsels, Rajani Iyer and Darshan Mehta, the couple had signed consent terms on February 14 this year. It mentioned that the husband was to get permanent custody of their daughter and the wife would get visitation rights. Also, the husband was to deposit Rs 1.11 crore with the court as alimony which the wife would be allowed to withdraw after finalising the divorce.
The pending petition was to be converted into a petition for divorce by mutual consent.
However, on March 1, the husband filed a new application for dissolution of marriage by consent before family court in the pending divorce petition. The judge allowed the same on July 30, within five months of signing of the consent terms.
Iyer argued that if the settlement terms put before the mediator are to be acted upon and to be given effect, even then, the period of six months had definitely not elapsed when the impugned order of July 30 was passed.
Satyan Vaishnav and Nupur Mukherjee, counsels for the husband, argued that the wife had not abided by consent terms to concede their child's custody.
"If it is accepted that the said consent terms were arrived at with full consent and knowledge, still, all the clauses in the consent terms should have been given effect prior to putting an end to the matrimonial tie, specifically on the basis of the consent terms and giving full custody of the child in favour of the husband," observed the bench.
Setting aside the divorce order, the HC has sent the matter back to the family court and asked the family judge to hear the matter afresh.
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