a normal Divorce Petition filed under 13B (Mutual Divorce) is usually given a 6 months period to both the husband and wife, rethink and then appear after that 6 months period and inform the court whether they still want divorce or, they are really ready to part ways. This process has been rhetorical and therefore was deeply causing inconvenience to either parties of the divorce case.
In a recent decision of Amardeep Singh vs. Harveen Kaur ,1 the apex court had a chance to interpret the law regarding mandatory ‘cooling off’ period in cases of divorce by mutual consent of the parties described under sec. 13B(2) of the Hindu Marriage Act, 1955.
In the present case, the parties were living separately for past 8 years and arrived at a settlement for all the disputes between them before filing the petition for divorce. It was sought from them that since the parties have already arrived at settlement, there is no need for them to wait for another six months as required under the section.
In the past, the Supreme Court has given waiver to parties for this ‘cooling period’ but these cases have been exceptional. The question posed before the court was that whether courts can give relaxation to parties with regard to the 6-month waiting period mentioned under the section without placing reliance on Art. 142 of the Constitution. If the provisions are not mandatory, then there is no need for the courts to apply Art. 142 for waiving off this period.
If 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:
- 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;
- All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
- The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
- The waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 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. 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.
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