Family courts free to waive six-month cooling period in mutual divorce cases: SC

The bench noted that the object of the cooling-off period in the Act “was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled.

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The apex court order also allowed family courts to use video conferencing for divorce proceedings and to permit parties to be represented by “close relations such as parents or siblings” where they are “unable to appear in person for any just and valid reason…”.

Making divorce by mutual consent easier, the Supreme Court ruled on Tuesday that family courts were free to waive the statutory six-month period under the Hindu Marriage Act for considering divorce applications in cases where the parties were living separately for more than 18 months before filing the petition, efforts to reconcile differences had failed and claims of alimony and custody of children had been settled.

“We are of the view 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 child or any other pending issues…; and (4) the waiting period will only prolong their agony,” a bench of A K Goel and U U Lalit said in their order.

According to clause (1) of Section 13B, in cases of divorce by mutual consent, a petition can be filed only if the parties have been living separately for at least one year while clause (2) says the court cannot grant divorce before expiry of six months from the date of filing of the petition.The statutory period under clause (2) has so far been treated as mandatory. This meant that couples who move the court even after many years of separation had to wait for six more months after they file the petition to get divorce. The apex court simplifies this procedure for such couples by saying that the six-month term was discretionary and it was open to the court to waive the same depending on facts of each case.

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The bench noted that the object of the cooling-off period in the Act “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 where there was no chance of reconciliation.”

It added, “If there are no chances of reunion and there are chances of a fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option”. The court was dealing with the plea of a couple who had filed for divorce by mutual consent, eight years after they started living separately.

Ananthakrishnan G

Ananthakrishnan G. is a Senior Assistant Editor with The Indian Express. He has been in the field for over 23 years, kicking off his journalism career as a freelancer in the late nineties with bylines in The Hindu. A graduate in law, he practised in the District judiciary in Kerala for about two years before switching to journalism. His first permanent assignment was with The Press Trust of India in Delhi where he was assigned to cover the lower courts and various commissions of inquiry. He reported from the Delhi High Court and the Supreme Court of India during his first stint with The Indian Express in 2005-2006. Currently, in his second stint with The Indian Express, he reports from the Supreme Court and writes on topics related to law and the administration of justice. Legal reporting is his forte though he has extensive experience in political and community reporting too, having spent a decade as Kerala state correspondent, The Times of India and The Telegraph. He is a stickler for facts and has several impactful stories to his credit. ... Read More

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