The Hindu Marriage Act of 1955 lays down provisions for the dissolution of marriage through mutual consent, as one of the modes of divorce. However, the Act also stipulates a mandatory waiting period of six months before the court can pass a decree of divorce based on mutual consent. This provision is enshrined in Section 13(B)(2) of the Act. While the waiting period was meant to provide a window for the parties to reconsider their decision, it has also been criticized for prolonging the agony of the parties involved. In recent times, there has been a growing debate on whether this waiting period can be relaxed in exceptional situations, or whether it should remain a mandatory requirement in all cases of divorce by mutual consent.
What is the Cooling-Off Period?
A cooling-off period in a divorce refers to a mandatory waiting period between the filing of a divorce petition and the finalization of the divorce. In some jurisdictions, this waiting period can range from a few weeks to several months, and its purpose is to provide the parties involved with a chance to reconsider their decision and explore the possibility of getting back together.
In the context of divorce by mutual consent under the Hindu Marriage Act, of 1955, the cooling-off period is six months, as stipulated in Section 13B(2) of the Act. During this period, the parties are expected to reflect on their decision to end the marriage and attempt to resolve any outstanding issues, such as property division or child custody, through mutual agreement. Once the cooling-off period is over, the parties can approach the court with a joint request for a decree of divorce, provided they are still in mutual agreement.
Citations: Amardeep Singh Vs Harveen Kaur, AIR 2017 SC 4417
Bench: Justices Uday Umesh Lalit, Adarsh Kumar Goel
Case Type: Civil Appeal
On 16th January 2001, the Appellant, Amardeep Singh, entered into matrimony with the Respondent, Harveen Kaur. Two children were born to them in the years 1995 and 2003. Due to certain disputes between them, the couple started living separately in 2008. Finally, on 28th April 2017, the parties reached a settlement and decided to seek divorce by mutual consent due to no possibility of reconciliation. The Appellant was ordered to pay the Respondent a permanent alimony of Rs. 2.75 crores, which was fulfilled through two cheques of Rs. 50 lakhs each. The custody of the children was with the Appellant.
On 8th May 2017, the Appellant filed a petition before the Family Court of Tis Hazari Court, New Delhi, seeking a decree of divorce based on mutual consent. Statements from both parties were recorded. Later, both parties pleaded for the waiver of the six-month waiting period for the second motion on the grounds that they had been living separately for over eight years, and there was no chance for reconciliation.
In the present petition filed before the Hon'ble Supreme Court, the parties have pleaded that the statutory period of six months prescribed for the second motion under the Hindu Marriage Act, 1955, should be relaxed in view of the previous decisions of the Apex Court on this matter.
The issue at hand is whether the mandatory minimum period of six months stipulated under Section 13(B)(2) of the Hindu Marriage Act, 1955, for the passing of a decree of divorce based on mutual consent, can be waived or relaxed in exceptional circumstances.
The matter at hand concerns the exercise of power under Article 142 to waive the statutory period under section 13B of the Act. There has been a conflict in decisions of the Court, with the Manish Goel v. Rohini Goel case holding that such power cannot be used to waive the statutory period of six months for filing the second motion under section 13B. This is because courts are meant to enforce the rule of law and not pass orders contrary to what has been injected by law. However, the Court can exercise this power in exceptional cases where the marriage is unworkable, emotionally dead, beyond salvage, and broken down irretrievably, as seen in the Anil Kumar Jain v. Maya Jain case. The power can be exercised to put an end to all litigations and to save the parties from further agony.
The court noted that the parties had been living apart for over a year and there was no possibility of reconciliation. However, the minimum statutory period of six months stipulated under Section 13B(2) of the Hindu Marriage Act was causing difficulties for the parties to move on. The Hon'ble Supreme Court outlined the factors to consider in determining whether the provision under Section 13B(2) is mandatory or directory, including completion of the waiting period before filing the first motion, use of mediation and conciliation, settlement of alimony and custody matters, hindrance caused by a waiting period for further settlement, and filing of an application for a waiver a week after the first motion. The court held that, upon satisfaction of these conditions, the waiting period for the second movement could be waived at the discretion of the court. Thus, the prescribed waiting period under Section 13B(2) is not mandatory but a directory. Additionally, the parties may approach the court for fresh consideration after the order.
In recent events, the Supreme Court on Monday declared that it could dissolve marriages on the ground of ‘irretrievable breakdown of marriage” under special powers of Article 142 on 1st May 2023. SC further said that the 6-month cooling-off period through mutual consent could be done away with subject to conditions. The bench noted that the irretrievable breakdown of marriage is not a legally recognized ground for dissolving marriage. A Constitution bench said, "We have also laid down factors which can determine when there will be an irretrievable breakdown of marriage," a Constitution Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari, said. The bench has also laid out how to balance out equities, specifically with regard to maintenance, alimony, and the rights of the children. They added that after serious efforts for reconciliation have been made and yet separation is inevitable then divorce must be granted to save both the parties from further misery. The court clarified that a party could not directly approach the SC and seek relief of dissolution of marriage on the ground of irretrievable breakdown.