Six months cooling off period for divorce by mutual consent held not mandatory by Supreme Court

Amardeep Singh vs. Harveen Kaur

The Supreme Court in Amardeep Singh vs. Harveen Kaur dealt with the question whether the provision of Section 13B of the Hindu Marriage, Act, 1955 laying down cooling off period of six months is a mandatory requirement or it is open to the Family Court to waive the same having regard to the interest of justice in an individual case.

In the present case, the parties got married in 1994 and were living separately for more than eight years. A settlement was arrived at between the parties to resolve all the disputes and sought divorce by mutual consent.  The respondent wife was agreed to be given permanent alimony of Rs.2.75 crores. Waiver of the period of six months for the second motion was sought for as there was no possibility of their reunion and any delay would affect the chances of their resettlement.

The Supreme Court observed that under Hindu law marriage is a sacrament and cannot be dissolved by consent under the traditional Hindu Law. The concept of divorce by mutual consent was introduced by amendment of the Hindu Marriage Act in 1976. Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent.  This enabled the parties to rethink so that the court granted divorce by mutual consent only if there was no chance for reconciliation.The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled.

While deciding whether Section 13B(2) is to be read as mandatory or discretionary, the Supreme Court took into consideration various earlier decisions such as Nikhil Kumar  vs.  Rupali Kumar[(2016) 13 SCC 383], Manish Goel vs. Rohini Goel[(2010) 4 SCC 393], Poonam vs. SumitTanwar[(2010) 4 SCC 460], Anil Kumar Jain vs. Maya Jain[(2009) 10 SCC 415] and Kailash vs. Nanhku and ors.[ (2005) 4 SCC 480]. The Supreme Court held that the concerned Court will have the discretion to waive the statutory period under Section 13B(2)[waiting period for the second motion] if the following conditions are satisfied:

• 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 to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts
• parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties
• waiting period will only prolong their agony.

It also observed that the waiver application could be filed one week after the first motion giving reasons for the prayer for waiver.

The Supreme Court thus held that the period mentioned in Section 13B(2) is not mandatory but merely 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.  Further, the concerned Courts would be allowed to use the medium of video conferencing and also to permit genuine representation of the parties through close relations where the parties are unable to appear in person for any just and valid reason.