September 14th, 2017
A six-month waiting period for Hindu couples seeking divorce is not mandatory, the Supreme Court said on Tuesday. It laid down directions for lower courts to speed up separation if both spouses agree to the terms. This decision will bring significant respite for couples who seek separation through “mutual consent”.
“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 of resuming cohabitation and there are chances of alternative rehabilitation,” the bench of judges Adarsh Goel and UU Lalit said, reported Hindustan Times.
“That an application for waiver of the six month period set out in the Hindu Marriage Act can be a go-by if the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties, and the waiting period will only prolong the agony,” the court further added.
As per the Hindu Marriage Act, a divorce petition can be filed in a district court on the ground that a couple has been living separately for one year or more has not been able to live together and has mutually agreed the marriage should be dissolved.
According to a report by The Times of India, “The object of the provision is to enable the parties to dissolve a marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was otherwise the possibility of difference being reconciled,” it said.
The Section 13B(2) of the Hindu Marriage Act says that if both parties do not change their pleas for divorce in a time period not less than six months and not later than 18 months, the court shall pass a decree declaring that the marriage will be dissolved.
The period of 18 months in Section 13B is an opportunity to give time to the couple to reflect on their move. The bench further added that the object was not to perpetuate a purposeless marriage to prolong the agony of the parties when there was no chance of reconciliation. The court should not be powerless in enabling the parties to have a better option.
The court passed the order on a petition filed by a couple seeking direction to wave off the cooling off period as they had been living separately for eight years and had settled all issues pertaining to alimony and custody of the child. They told the apex court that delay in the divorce would affect their chances to resettle in life.
Senior advocate K V Vishwanathan, who was assisting the court in adjudicating the case, said the waiting period under the Act was directory and could be waived if the parties living separately for a period of one year or more and have agreed that the marriage is dissolved. He said, “The discretion to waive the period is a guided discretion by consideration of the interest of justice where there is no chance of reconciliation and parties already separated for a longer period or contesting proceedings for a longer period than the period mentioned in Section 13(B) 2”.
The court said parties can file waiver application just one week after a divorce petition is filed and the court will take a call on waiving the period.
The Logical Indian community wholeheartedly supports the decision taken by the apex court. This move will help in curtailing the agony of couples who have no chances of reconciliation and have been living apart for more than a year.