Compelling Parties In Mutual Divorce To Wait For Cooling-Off Period To Expire Will Only Increase Their Agony: Madras High Court

Justice PB Balaji, after considering the decision of the Supreme Court and other High Courts regarding the issue, held as under,

“Independently, I also find that both the petitioners have filed separate affidavits even in this revision, affirming their decision to go separate ways. The interest of any children is also not involved in the present case, since the parties were not blessed with any issues and both the petitioners have categorically asserted that the relationship has become irreconcilable and distressing. In such circumstances, compelling the petitioners to wait for the mandatory period to expire would only further increase their agony. The petitioners have also stated that their decision is voluntary and only based on their free will and there is no fraud, collusion or undue influence brought upon them to file the mutual consent divorce petition,” the court said.

The court was hearing a revision petition by a husband and wife against a docket order of the Family Court, Coimbatore. The couple had sought mutual divorce under Section 10A of the Indian Divorce Act.

The revision petitioners submitted that the Family Judge had returned their petition, stating that the plea, filed before the completion of 2 years from the date of separation, was not maintainable.

The couple had approached the high court challenging this order, and the high court had directed them to represent the papers before the Family Court. However, even then, by a docket order, the family court held that the mandatory one-year period of separation under Section 10A of the Indian Divorce Act could not be dispensed with. This docket order was challenged in the present plea.

The petitioner's counsel relied on the decisions of the Supreme Court in Shilpa Sailesh vs Varun Sreenivasan, in which it was held that the mandatory six-month waiting period under Section 13B of the Hindu Marriage Act could be dispensed with by the courts, upon their satisfaction.

Reliance was also placed on the decision of the Kerala High Court in Anup Disalva and Another vs Union of India, wherein the court had held Section 10A of the Divorce Act as unconstitutional and violative of fundamental rights.

The court noted that though the judgment of the Kerala High Court may not have a binding precedent on the Madras High Court, it would definitely have a persuasive value. The court also noted that the decision of the Supreme Court was also on the same lines as that of the Kerala High Court, regarding the court's power to waive the cooling period.

The court thus opined that the Family court is entitled to waive the mandatory waiting period and cannot compel the parties to sit through it before presenting the petition for divorce with mutual consent under Section 10A of the Indian Divorce Act.

Thus, the court was inclined to set aside the docket order of the Family Court and directed the Family Court to number the petition filed by the parties, if it was otherwise in order.

Counsel for the Petitioner: Mr. G. R. Deepak

Case Title: SGS and another v. NIL

Citation: 2025 LiveLaw (Mad) 319

Case No: CRP.No.4013 of 2025