Bar U/S 13-B Procedural Will Not Affect the Substantive Rights of Parties Settling Amicably

The Allahabad High Court has recently exempted a married couple from the cooling off period which had mutually filed for divorce under Section 13-B of the Hindu Marriage Act, after entering a Memorandum of Understanding amicably.

The Court said the substantive rights of the two parties that settle their conflict amicably must not be interfered with citing procedure.

A Two-Judges bench of Justice Attau Rahman Masoodi and Om Prakash Shukla observed,

“This Court may note that legitimacy or otherwise of an MOU arrived at between the parties out of their free will is not open to judicial scrutiny except on the ground of fraud. The very idea of settlement through mediation or amicable means runs and progresses through this realm of philosophy.“

Background:

The Appellant Eti Tyagi and the Respondent, Prince Tyagi had filed for dissolution of their marriage under Section 13-B of Hindu Marriage Act on the grounds of irretrievable breakdown of marriage. Since the parties had been living separately for more than a year, they have filed an application for waiver of the cooling-off period as well. The Family Court had rejected the application based on the bar under Section 13-B of the Act.

High Court Verdict:

Pertaining to the 6-month cooling-off period provided under Section 13B (2) of the statute, the Court held that it is procedural in nature.

The Court further held, “The mandate of the statute remains procedural. The substantive right of the two parties to settle the conflict by an amicable settlement in a case where the settlement so arrived is free, the law must honour such a right. The amicable means of settlement serve the object of justice which the law fails to deliver between the parties at times giving rise to exceptional situations. This object of all amicable settlements is bound to be respected and recognized by the courts of law in all such cases where the MOU remains unquestionable and the parties have acted upon freely in the pursuit of Article 21 of the Constitution of India to live with dignity.“

The Court also gave reference of the case of Amit Kumar Vs. Suman Beniwal in which the Supreme Court held that the institution of marriage is to be served by preventing hasty dissolution of marriage. However, granted divorce since the separation had continued on account of irretrievable breakdown of marriage.

“The parties to a marriage if allowed to litigate would also not achieve the purpose of law and would thus damage the institution of marriage in equal measure. It is for this reason that an amicable settlement deserves to be recognized in law with promptitude.“

Subsequently, the Court waived off the cooling-off period and also ordered that the proceedings under Section 13-B of the Act be concluded within two weeks from the date of filing of the certified copy of the order.

Source: https://www.livelaw.in/high-court/allahabad-high-court/allahabad-high-court-waives-cooling-off-period-mutual-divorce-section-13b-hindu-marriage-act-236608