A mutual consent divorce proceedings initiate when both the parties to the marriage i.e. husband and wife want to terminate the marriage. They decide to get separated by mutual consent. According to the provisions of the Hindu Marriage Act, 1955, both the husband and the wife have the right to dissolve their marriage by a decree of divorce on various grounds provided under Section 13 of the Act. Further, Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, provide for divorce by mutual consent.
Cooling off period
The Hindu Marriage Act, 1955, provides for a statutory cooling period of 6 months between the first and the second motion for seeking mutual consent divorce. This provision exists so that the parties explore the possibility of settlement and cohabitation. The intention behind the cooling-off period is to enable the disputed parties to reflect on their decision and make an attempt to resolve their differences. But the cooling-off period often contradicts the free-will of the parties, this has been observed by the courts in India time and again.
The Apex Court in Sureshta Devi v. Om Prakash, stated that filing of the petition with mutual consent does not authorize the court to make a decree for divorce. There exists a cooling-off period of 6 to 18 months. This gives the parties time and a chance to reflect on their move and reconsider their decision. There might be a case if the parties change their mind and decide to reconcile. the Apex Court explained that the intention of the cooling-off period aims at enabling the parties to reflect on their decision and making an attempt to resolve their differences. But, the cooling-off period often contradicts the free will of the parties.
In the case of Naveen Kohli v. Neelu Kohli, it was noted by the court that where both parties moved the court together to break a ‘substance-less’ marriage, the cooling-off period was unnecessary and an extraneous practice.
The object of cooling off period
- To safeguard against a hurried decision if there was otherwise possibility of differences being reconciled
- Not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation
- 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.
Six months cooling off period
The issue before the Courts in India
Whether the 6 months cooling-off period as provided under the Hindu Marriage Act, 1955, for mutual consent divorces mandatory in all cases?
As mentioned above, to obtain a divorce by mutual consent, parties must first file a divorce petition. Then they have to wait for a minimum of six months time period before filing a motion to finalize the divorce.
The Apex Court has considered the aforesaid issues in the case of Amardeep Singh v. Harveen Kaur, and it ruled that it had no discretionary power to override the explicit provisions of the Hindu Marriage Act (or any other statute). The Court stated that the provision of the Hindu Marriage Act requiring the six-month cooling-off period is not mandatory but only directory.
Hence, the Family Courts before which divorce proceedings are pending can waive this period in exceptional circumstances, if certain conditions are fulfilled, that are mentioned below. If any court dealing with a case of mutual divorce is satisfied that an appropriate case has been made out for waiving the cooling-off period, then it may do so subject to the following conditions:
- The statutory period of six months provisioned u/s 13B(2), along with the statutory period of one year mentioned in u/s 13B(1) of separation of parties is over before the first motion itself;
- All efforts for reconciliation including the efforts in terms of Order XXXIIA Rule 3 of the Civil Procedure Code, Section 23(2) of the Act; Section 9 of the Family Courts Act for reconciliation of the parties have failed;
- The parties have put in genuine efforts to settle their differences about alimony, custody of the child, or any other pending issues between the parties;
- The waiting period will only prolong their agony;
- The waiver application can be filed one week after the first motion giving reasons for the prayer for waiving.
The judgment passed by the Court in the Amardeep Singh Case (supra) advanced the interests of the parties. The Family Courts now refrain from the cooling-off period when the aforesaid factors were fulfilled. It also means that the Family Courts refrain from waving off the cooling-off period unless a period of 18 months of separation had elapsed, however, this may defeat the purpose of the instant judgment at times.
Very recently, a division bench comprising Chief Justice Vipin Sanghi and Justice Dinesh Kumar Sharma while setting aside the order passed by the Family Court wherein the Court rejected the second motion petition that was jointly moved by the parties u/s 13B (2) as the statutory period of 6 months from the date when the first motion was moved, and period of 18 months from the date of separation, had not expired.
Waiving of 6 months cooling off period
The Supreme Court clarified that the minimum cooling period of six months for granting the decree of divorce under the Hindu law can be waived by a trial court in the cases having no possibility of cohabitation between the disputed couple.
A bench of Justices A K Goel and U U Lalit stated that “We are of the view that the period mentioned in Section 13B(2) is not mandatory but directory; it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation”.
Recently, the parties had submitted before the Delhi High Court that all efforts of reconciliation and resolution of differences by their family members and well-wishers had failed at multiple forums. They are undergoing the agony of an abusive marriage and had reached an overall settlement they had also executed the settlement deed in October 2021, resolving all their pending disputes and claims, and filed for mutual divorce.
The Delhi High Court ordered that “The parties have arrived at an overall settlement concerning all the inter se disputes and claims. 18 months from the date of separation of the parties would expire on 02.04.2022. Because not even a month is left for that date to arrive, we, accordingly, allow the same and pass a decree of divorce by mutual consent of the parties under Section 13B of the Hindu Marriage Act, 1955 after waiving the statutory period under Section 13 B of the said Act”.
Family Courts to properly interpret the Amardeep Judgment
In the case of Amit Kumar v. Suman Beniwal– The Apex Court allowed the appeal and held that the conditions for waiving in Amardeep Singh Case (supra) were illustrative and not exhaustive. The Court further clarified that the Family Courts have misconstrued the judgment in Amardeep Singh as it only considers the conditions specified in the said judgment as mandatory. The lower Courts interpret that the statutory period of 6 months u/s 13B (2) can only be waived if all the conditions mentioned in the said judgment are fulfilled, which also includes the condition of separation of at least 18 months before making the motion for a decree of divorce.
The Court stated that “It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity.”
The Court provided the following guidelines to exercise the discretion to waive the statutory period of 6 months:
- How long the parties were married;
- How long they had stayed together;
- How long they had stayed apart;
- How long their litigation had been pending;
- Existence of other proceedings between the parties;
- Possibility of reconciliation;
- Whether they had any children;
- Whether the parties had freely arrived at a settlement about alimony, maintenance, or child custody.
Conclusion
To sum up we can say that while considering the case whether it is fit for waving the cooling-off period or not the particular facts of the case must be considered. The courts may do away with the waiting period when both the parties have made a sound decision of separating amicably. The judgment passed in Amit Kumar Case (Supra) sets a good precedent in giving more autonomy to individuals in the issues such as a failed marriage and reduces the control of the state in the affairs of citizens.
[i] https://theleaflet.in/divorce-through-mutual-consent-by-waiving-cooling-period-in-a-recent-case-sc-has-emphasised-individual-autonomy-in-private-matters/
[ii] (1991) 2 SCC 25
[iii] AIR 2006 SC 1675
[iv] Civil Appeal No. 11158 of 2017
[v] Amardeep Singh v. Harveen Kaur on 12 September, 2017
[vi] https://www.business-standard.com/article/pti-stories/6-month-cooling-period-for-granting-divorce-can-be-waived-sc-117091201299_1.html
[vii] 2022 LiveLaw (Del) 229
[viii] Civil Appeal 7650/2021 decided on 11.12.2021
[ix] https://theleaflet.in/divorce-through-mutual-consent-by-waiving-cooling-period-in-a-recent-case-sc-has-emphasised-individual-autonomy-in-private-matters/
