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For Mutual Divorce, Supreme Court Changes 6-Month ‘Cooling Off’ Rule

The Supreme Court has relaxed the procedure of granting divorce on the ground of mutual consent by waiving off the cooling off period of six months which was earlier mandatory for couples, to get a decree of divorce. The hon’ble court while hearing the arguments in the matter of Amardeep Singh vs. Harveen Kaur (Civil Appeal No. 11158 of 2017) ruled that that family courts are free to waive the statutory six-month period stipulated under Section 13B (2) of the Hindu Marriage Act, 1955 (“Act”) for considering divorce applications.

The hon’ble court held that the cooling off period can be waived in cases where the parties were living separately for more than eighteen months before filing the petition, efforts to reconcile differences had failed and claims of alimony and custody of children had been settled.

The court opined that the object of the six-month cooling off period 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 the available options. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Further, the cooling off period is to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The amendment in the provision through this ruling was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners does not serve any purpose.

However, in order to waive off the statutory period under Section 13B (2) of the Act, the courts must ensure that the following conditions are met:

  • the statutory period of six months specified in Section 13B (2) of the Act, in addition to the statutory period of one year, under Section 13B (1) of the Act, of separation of parties is already over before the first motion itself;
  • all efforts for mediation/conciliation including efforts 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.