Tuesday, September 12, 2017

6-month 'cooling off' period for granting divorce can be waived: SC

A Hindu married couple may not need to wait six months for a separation order in the case of mutual consent and the marriage can be legally terminated in just a week as the Supreme Court on Tuesday held that the "cooling off" period in not mandatory and can be waived off.

The court ruled that the stipulation under the Hindu Marriage Act for a six-month wait could be done away with if all efforts for mediation and conciliation intended to reunite the parties had failed. The waiving off can be considered if the parties had already lived separately for at least a year. In such situations, the court could take a view that delay in proceedings will only prolong subsequent resettlement.

"The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled," it said.

Explaining the provision, a bench of Justices A K Goel and U U Lalit said the object of the cooling off period is to safeguard against a hurried decision taken by a couple to get separated and to allow them to explore ways to settle their disputes but this could not be made mandatory.

Section 13B(2) of the Hindu Marriage Act says that if both parties do not change their pleas for divorce in a time period not less that six months and not later that 18 months, then the court shall pass a decree declaring the marriage to be dissolved. The period of six to 18 months provided in section 13B is an interregnum to give time and opportunity for the couple to reflect on their move.

The bench said the period of six months can be waived off if conciliation fails and the parties had genuinely settled differences relating to alimony, custody of child or any other pending issues between them.

"The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option," the bench said.
The Court passed the order on a petition filed by a couple seeking direction to wave off the cooling off period as they had been living separately for eight years and had settled all issues pertaining to custody of child and alimony. They told the apex court that delay in divorce would affect their chances to resettle in life.
Senior advocate K V Vishwanathan, who was assisting the court in adjudicating the case, said the waiting period under the Act was directory and could be waived if the parties living separately for a period of one year or more and have agreed that the marriage be dissolved. "The discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2)," he said.
The bench, after examining all the issues, came to the conclusion that Section 13B(2) was not mandatory but directory. It said that the concerned court could waive off six months period after being satisfied that the parties were living separately for more than a year with no chance of reconciliation and further waiting period would only prolong their agony.

It said parties can file waiver application just one week after divorce petition is filed and court will take a call on waiving off the period.

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