Marriage has always been regarded as the most sacred and harmonious of all relationships between a man and a woman. Hindu marriage is not merely a social contract but a religious sacrament and therefore all measures are taken by the courts of law to preserve the sanctity of marriage and matrimonial home. In view of this, six months cooling off period has been prescribed under the Hindu Marriage Act to provide an opportunity for parties to rethink and reconsider their decisions, in the event, parties have filed the consent petition for divorce in the heat of the moment.
DIVORCE BY MUTUAL CONSENT
The ground of divorce by mutual consent was inserted in the Hindu Marriage Act 1955 by an amendment in 1976, by adding Section 13B.
Section 13 B of the Hindu Marriage Act, 1955 says:
- Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
- On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
Thus, the requirements for the presentation of the petition by mutual consent are the following:
- That spouses have been living separately for a period of one year
- That they have not been able to live together
- That they have mutually agreed that their marriage should be dissolved.1
WHETHER THE WAITING PERIOD OF SIX MONTHS IS MANDATORY OR DIRECTORY
There has been a lot of controversy and conflicting views of the Supreme Court in this regard that whether the courts should mandatorily wait for six months as provided in Section 13B sub-section (2) before granting a decree of divorce.
It was held in Anjana Kishore v. Puneet Kishore2, that the period can be waived by the Supreme Court in the exercise of powers under Article 142 of the Constitution of India.
Whereas in, Manish Goel v. Rohini Goel3, it was held that Article 142 could not be invoked contrary to a statutory prescription.
However, time and again it has been ruled by various High Courts that the observance of 6 months cooling period is not mandatory and shall be determined by analyzing the facts and circumstances of each case.
In the case of Dinesh Kumar Shukla v Neeta4, it was held that the waiting period is directory in nature and it can be brought down from 6 months (provided the mandatory requirements of s 13-B (1) are fulfilled) when all efforts at reconciliation failed.
In K. Thiruvengadam v. Nil5, it was observed that as provided in sub-section (2) of section 13B the period of six months cannot be taken as mandatory, because if it is mandatory the very purpose of liberalized concept of divorce by mutual consent will be frustrated, especially when the parties have lived separately and there was no chance of reunion.
The position on this has been settled by the Hon’ble Supreme Court in its landmark judgement of 12th September 2017
In Amardeep Singh v. Harveen Kaur6 on 12th September 2017, the Court held that that the period mentioned in Section 13B(2) was not mandatory but directory, and that it will be open to the Court to exercise its discretion in the facts and circumstances of each case. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise the possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.
It was held that where the Court dealing with a matter was satisfied that a case was made out to waive the statutory period under Section 13B(2), it can do so after considering the following:
- The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
- All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
- The parties have genuinely settled their differences including alimony, custody of a child or any other pending issues between the parties;
- The waiting period will only prolong their agony.
CRITICISM AND SUPPORT OF THE JUDGEMENT
While some people are saying that the rule is not good for young couples who lack the patience and maturity and will, therefore, lead to a rampant increase in the no. of divorces.
But what we fail to understand is that the six months cooling period has not been completely waived off and had only been kept at the discretion of the court after examining the facts and circumstances of each case. The court while considering the waiver of statutory period of six months, has to consider the questions viz. like the duration of marriage, duration of the pending litigation, the period of separation between the couple and only after mediation conciliation process is over, whether the parties have arrived at genuine settlement which takes care of ancillary reliefs like alimony, child custody, and other related issues. If the court feels that there are chances of reconciliation it will order the observing of six months period as mandatory before granting the divorce. The court will waive off the said period only in those cases where the court is of the opinion that the marriage has broken down irretrievably and there are no chances of reconciliation between the couple.