Whether six months can be relaxed?
The Supreme Court (SC) in Amardeep Singh v Harveen Kaur [(2017) 8 SCC] examined and decided whether the minimum period of six months stipulated under Section 13B (2) of the Hindu Marriage Act, 1955 (HNA) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.
Purpose of cooling period
The object of the cooling of the period was to safeguard against a hurried decision if there was otherwise 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.
What the SC decided in Amardeep Singh case
The SC then decided that where the Court dealing with a mutual consent divorce petition is satisfied that a case is 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 Code of Civil Procedure/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 child or any other pending issues between the parties;
- the waiting period will only prolong their agony.
Waiver application can be filed after one week
The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
If the aforesaid conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.
Cooling period in the statute is not mandatory
The SC is 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.
The court can use video conferencing
In conducting such proceedings, the court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.
Relied on a 2016 judgement
In deciding the Amardeep Singh case the SC relied on decision of the apex court in Nikhil Kumar v. Rupali Kumar [ (2016) 13 SCC 383] wherein the statutory period of six months was waived under Article 142 of the Constitution and the marriage was dissolved.
Additional reading
- Amardeep Singh v Harveen Kaur, at https://indiankanoon.org/doc/79830357/
- Nikhil Kumar v Rupali Kumar, at https://indiankanoon.org/doc/50438237/
- The Hindu Marriage Act, 1955 at https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
