Mutual Consent Divorce and The Cooling Off Period

Sub-Section 1 of Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA’) provides that a petition (hereinafter referred to as ‘first motion’) for dissolution of marriage by a decree of divorce may be presented by both the parties on the ground that: 

1. They have been living separately for one year or more; 

2. They have not been able to live together and;

3. They have mutually agreed that the marriage should be dissolved.

Further, Sub-Section 2 of Section 13B of the HMA provides that the second motion shall be filed not earlier than 6 months after the date of presentation of the first motion and not later than 18 months after the said date, if the petition (first motion) is not withdrawn in the meantime, the court shall pass a decree of divorce declaring the marriage to be dissolved. Further, the court shall satisfy itself that:

1. A marriage has been solemnized and;

2. The averments in the petition are true.   

Further, Section 14 of HMA says that the court shall not entertain any petition for dissolution of marriage by a decree of divorce unless, at the date of the presentation of the petition, one year has elapsed since the date of marriage, but the court may allow such petition to be presented before the prescribed period of one year on the ground that:

1. The case is one of exceptional hardship to the petitioner or:

2. The case is one of exceptional depravity on the part of the respondent,

A bare perusal of Sub-section 2 of section 13B of HMA suggests that between the first motion and the second motion, there should be a mandatory gap of 6 months for the dissolution of marriage by a decree of divorce. 

Does it mean that marriage cannot be dissolved by a decree of divorce before those 6 months though both parties mutually have decided to part ways?

The same question arose before the Hon’ble Supreme Court of India in the matter of Amardeep Singh Vs. Harveen Kaur reported as 2017 (8) SCC 746, wherein, the Hon’ble Court has framed the following question;

Whether the minimum period of six months stipulated under Section 13B(2) of the HMA for a motion for passing a decree of divorce based on mutual consent mandatory or can be relaxed in any exceptional situations?

In this case, parties have sought a waiver of the period of six months for the second motion on the ground that:

1. They have been living separately for the last more than eight years;

2. There is no possibility of their reunion and; 

3. Any delay will affect the chances of their resettlement.

The parties have moved to the Supreme Court on the ground that only the Supreme Court can relax the six months. Reliance was placed on the decision of the Supreme Court in Nikhil Kumar vs. Rupali Kumar reported as (2016) 13 SCC 383, wherein, the statutory period of six months was waived by the Supreme Court under Article 142 of the Constitution and the marriage was dissolved. 

Thereafter, the Supreme Court observed that there is a conflict of decisions of the Supreme Court on the question of whether the exercise of power under Article 142 to waive the statutory period under Section 13B of HMA was appropriate.

In Manish Goel vs. Rohini Goel reported as (2010) 4 SCC 393, a Bench of two judges of this Court held that the jurisdiction of this Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion under Section 13B, as doing so will be passing an order in contravention of a statutory provision.

After considering the conflict decisions, the Supreme Court has held that “we are of the view that since Manish Goel (supra) holds the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the Constitution cannot be exercised contrary to the statutory provisions, especially when no proceedings are pending before this Court and this Court is approached only for waiver of the statute”.

While concluding the judgment, Hon’ble Supreme Court has held that where the Court dealing with a matter 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: 

1. 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; 

2. 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; 

3. The parties have genuinely settled their differences including alimony, custody of the child, or any other pending issues between the parties; 

4. The waiting period will only prolong their agony. 

Further, it was held by the Supreme Court that:

1. The waiver application can be filed one week after the first motion.

2. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the concerned Court. 

3. The period mentioned in Section 13B(2) is not mandatory but directory, therefore, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where:

1. There is no possibility of parties resuming cohabitation and; 

2. There are chances of alternative rehabilitation.

4. 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.