While answering questions referred to the court by a division bench, the full bench of Anup Jairam Bhambhani, Navin Chawla, Renu Bhatnagar said, “Once the court decides to entertain the first motion before expiry of the 1-year separation period; and the parties have also made-out a case for waiver of the 6- month cooling-off period for presenting the second motion; and the court is also convinced that divorce should be granted on mutual consent, we see no justification whatsoever for the court to withhold the passing of the divorce decree till the 1-year separation period is completed.”
As per the established norms, if a couple is seeking divorce with mutual consent, then they-
- should be living separately for a minimum period of one year;
- can file the first motion of divorce before the family court before completion of the prescribed one-year separation period;
- observe the six-month cooling-off period in which the couple can reconsider their decision to divorce and
- after a six-month cooling-off period, the second motion will be allowed, and the divorce decree will be granted only after the parties have resided separately for at least one year.
The bench noted that when spouses file for divorce by mutual consent, their wish to part ways is rooted in some “basis or reason” despite having chosen to adopt the consensual route for divorce.
In such circumstances, the court highlighted, it would be “wholly undesirable” to keep spouses trapped in a bad marriage.
“It hardly needs enunciation that such a situation would inflict undue psychological and emotional distress on one or both spouses, and that in itself may qualify as exceptional hardship on them,” the court remarked.
The court observed that the law has since “evolved”, and the jurisprudential landscape has undergone a “substantial transformation”.
Story continues below this ad
When can one-year separation period be waived
The court underlined the conditions as well for such waiver and said that it is not to be granted merely for the “asking” but only if the court is satisfied that there are circumstances of “exceptional hardship and/or exceptional depravity” on the part of the parties.
The court also clarified that the waiver can be granted both by the family court and the high court and said that the essential ingredient of divorce by mutual consent under the relevant laws is the ‘consent of parties’, and not the “timelines set out in that provision”, which are “directory and not mandatory” and can be waived in appropriate cases.
Cooling-off period
The court clarified that the waiving of the one-year separation period and the six-month cooling-off period must be treated as two “separate and distinct aspects”, and the waiver of one timeline would not preclude the waiver of the other.
“This court would also go a step further, to say that waiving the period of 01-year would not, in and of itself, disentitle the court from also waiving the 06-month period prescribed under section 13B(2) of the HMA,” the court pointed out.
Story continues below this ad
No misrepresentation, concealment
The bench underlined that if a waiver of the one-year separation period is obtained through misrepresentation or concealment, the court may defer the date on which the divorce would take effect or may dismiss the divorce petition, at whichever stage it is pending, without prejudice to the right of the parties to present a fresh petition.
Experts
Criminal lawyer Manoj Taneja, who practices in Delhi’s Patiala House Courts, said, “This judgment has given benefit to the litigating couples who want to lead a happy life as early as possible, pursuant to their decision of seeking divorce through mutual consent.”
Advocate Arpit Bhargava said with changing times, the courts are also cognisance and have now given the option that there is no difficulty in proceeding ahead with your life if you want to have a divorce by mutual consent.
“The ball is now in the court of the district courts, family courts. They’ll now have to figure out the reason why a person is coming (for divorce). Now that the judgment has come, there is a scope,” he said.
Story continues below this ad
The full bench, on December 17, by recognising the discretionary power of the court to waive the statutory period, has focused on preventing “undue psychological and emotional distress” to the individuals, allowing them to have the future prospects, including prospects of remarriage and social integration.
