Courts more liberal on ‘cool-off’ clause

The Divorce Act, which regulates separation among Christians, was framed in 1869 and borrowed its text from the English law, Matrimonial Causes Act, 1857.

Written by Utkarsh Anand | New Delhi | Updated: November 7, 2016 4:26 am
divorce, divorce rates, supreme court, supreme court india divorce, india divorce rates, rural divorce, urban divorce, rural divorce rates, urban divorce rates, india news, indian express The Supreme Court, exercising its extraordinary powers under Article 142 of the Constitution, has also in certain cases done away with the waiting period entailed under Section 13-B of the Hindu Marriage Act.

THE LAST time provisions regarding divorce in Hindus were amended was 30 years ago, when new grounds were added in the law. Dissolution of Muslim Marriages Act was promulgated in 1939 and has not changed since. The Divorce Act, which regulates separation among Christians, was framed in 1869 and borrowed its text from the English law, Matrimonial Causes Act, 1857.

However, the jurisprudence on divorce by mutual consent has witnessed a sea change over the years, thanks to the liberal interpretation of this provision by courts. Section 13-B laid down that a petition for dissolution of marriage may be filed on the ground that a couple has been living separately for a period of one year or more, that they have not been able to live together and that they mutually agreed that the marriage be dissolved.

In 1993, the Gujarat High Court ruled in the Kiritbhai Girdhar Bhai Patel vs Prafulaben Kiritbhai Patel case, that the expression “have been living separately” would not necessarily mean the spouses have to live in different places — they must not be living as husband and wife.

The Supreme Court, exercising its extraordinary powers under Article 142 of the Constitution, has also in certain cases done away with the waiting period entailed under Section 13-B of the Hindu Marriage Act.

At least twice this year, the Supreme Court has invoked Article 142 to do “complete justice” to waive the statutory cool-off period of six months.

Based on recommendations of the Law Commission, the previous UPA government had introduced the Marriage Laws (Amendment) Bill, proposing amendments to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, to make “irretrievable breakdown of marriage” a ground for divorce.

The Bill was passed by Rajya Sabha in 2013, but could not be taken up for discussion in Lok Sabha, where it lapsed. While introducing the Bill, it was underlined that the Supreme Court has in several cases recommended inclusion of irretrievable breakdown of marriage as a ground for divorce. But the NDA government put the Bill on hold, citing opposition to various proposed measures from individuals, senior citizen groups and NGOs.