Divorce by mutual consent – can the cooling period be waived off?

Last Updated at: April 18, 2020
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Divorce by mutual consent - Can the cooling period be waived off_

In cases of divorce by mutual consent, Section 13B(2) of the Hindu Marriage Act, 1955 prescribes a 6 month “cool off” or waiting period after the filing of the divorce petition before the matter proceeds, in order to give the couple one last chance at reconciliation. While there has been a lot of debate around whether this 6 month cooling off period is mandatory or whether courts can do away with the requirement in specific cases, various courts across the country have constantly taken different stances on this issue.

The Supreme Court of India has recently clarified the position on this issue in the case of Amardeep Singh vs. Harveen Kaur, by interpreting the law on the mandatory cool off period prescribed for couples divorcing by mutual consent as per the above-mentioned Section 13B(2) of the Hindu Marriage Act, 1955. In this case, the spouses had been separated and were living separately for about 8 years, and had arrived at mutually amicable settlements regarding property and custody even before filing the divorce petition. The court then had to deal with the question of whether in these circumstances, where there has been a considerable passage of time and thought on the part of the separating spouses already, the six months cooling off period was still mandatory.

Historically, courts have waived this 6 month cooling period requirement in exceptional circumstances but had not conclusively laid down the law on whether it is a mandatory or directory (i.e., to be decided on a case to case basis). In the present case, the Supreme Court also touched upon the previous cases where this cooling-off period had been waived because the court was of the opinion that the marriage in question had irretrievably broken down, and such a “cool off” period would only cause mental agony to the separating spouses.

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Moreover, the court also proceeded to analyse whether the 6 month period envisaged under the section was mandatory or merely directory in nature. It was observed that the rationale behind the cooling-off period was to allow the separating spouses to re-consider and give more thought to the matter so that divorce is only granted if there is absolutely no possibility of reconciliation. It was held that if there was absolutely no chance of reconciliation, courts should not be powerless with respect to enabling the spouses to move ahead with their respective lives.

Finally, the court held that Section 13B(2) is thus directory and not mandatory and that in future, if any court dealing with a case of mutual divorce is satisfied that an appropriate case has been made our to waive the cooling-off period, it may do so subject to the following:

  1. A period of one year and six months of the spouses living separately has already passed, before filling of the divorce petition itself.
  2. Enforcing the six months would only prolong the agony of the separating spouses.
  3. The spouses have legitimately settled their differences and arrived at amicable resolutions on alimony, child custody, joint property, etc.
  4. All efforts at reconciliation or mediation have failed, and there is no possibility of success through any further efforts.

The court further directed that such an application for waiver of the 6 months may be filed one week after the first motion, citing adequate reasons for the same. In case the criteria mentioned above are fulfilled, the waiver of the cooling-off period will be at the discretion of the court.

 

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Divorce by mutual consent – can the cooling period be waived off?

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In cases of divorce by mutual consent, Section 13B(2) of the Hindu Marriage Act, 1955 prescribes a 6 month “cool off” or waiting period after the filing of the divorce petition before the matter proceeds, in order to give the couple one last chance at reconciliation. While there has been a lot of debate around whether this 6 month cooling off period is mandatory or whether courts can do away with the requirement in specific cases, various courts across the country have constantly taken different stances on this issue.

The Supreme Court of India has recently clarified the position on this issue in the case of Amardeep Singh vs. Harveen Kaur, by interpreting the law on the mandatory cool off period prescribed for couples divorcing by mutual consent as per the above-mentioned Section 13B(2) of the Hindu Marriage Act, 1955. In this case, the spouses had been separated and were living separately for about 8 years, and had arrived at mutually amicable settlements regarding property and custody even before filing the divorce petition. The court then had to deal with the question of whether in these circumstances, where there has been a considerable passage of time and thought on the part of the separating spouses already, the six months cooling off period was still mandatory.

Historically, courts have waived this 6 month cooling period requirement in exceptional circumstances but had not conclusively laid down the law on whether it is a mandatory or directory (i.e., to be decided on a case to case basis). In the present case, the Supreme Court also touched upon the previous cases where this cooling-off period had been waived because the court was of the opinion that the marriage in question had irretrievably broken down, and such a “cool off” period would only cause mental agony to the separating spouses.

know more on Mutual Divorce

Moreover, the court also proceeded to analyse whether the 6 month period envisaged under the section was mandatory or merely directory in nature. It was observed that the rationale behind the cooling-off period was to allow the separating spouses to re-consider and give more thought to the matter so that divorce is only granted if there is absolutely no possibility of reconciliation. It was held that if there was absolutely no chance of reconciliation, courts should not be powerless with respect to enabling the spouses to move ahead with their respective lives.

Finally, the court held that Section 13B(2) is thus directory and not mandatory and that in future, if any court dealing with a case of mutual divorce is satisfied that an appropriate case has been made our to waive the cooling-off period, it may do so subject to the following:

  1. A period of one year and six months of the spouses living separately has already passed, before filling of the divorce petition itself.
  2. Enforcing the six months would only prolong the agony of the separating spouses.
  3. The spouses have legitimately settled their differences and arrived at amicable resolutions on alimony, child custody, joint property, etc.
  4. All efforts at reconciliation or mediation have failed, and there is no possibility of success through any further efforts.

The court further directed that such an application for waiver of the 6 months may be filed one week after the first motion, citing adequate reasons for the same. In case the criteria mentioned above are fulfilled, the waiver of the cooling-off period will be at the discretion of the court.

 

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