SC ruling that ‘cooling period’ can be waived for divorce is progressive, pragmatic; minimises State intervention in matrimony

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The Supreme Court on Tuesday held that the six-month waiting period prescribed under Section 13B(2) of the Hindu Marriage Act, 1955 for divorce by mutual consent is not mandatory, and may be waived off under certain exceptional circumstances.

The ruling is path-breaking in divorce laws, and the apex court stated that it is futile to “perpetuate a purposeless marriage and to prolong the agony of the parties”.

The two judge Bench of the Supreme Court comprised Justices AK Goel and UU Lalit, who stated that it would be up to the discretion of individual judges to decide on a case-by-case basis whether the six-month waiting or “cooling period” period is required.

File image of the Supreme Court. AP

Presently, under Section 13B of the Hindu Marriage Act, when a couple files for divorce claiming mutual consent, they usually have to wait for eighteen months to actually get the divorce – first, a twelve-month separation has to be established, which is then followed by a “cooling off” period, spanning six months to allow for reconciliation.

Section 13B(1) states that a divorce petition can be filed by a couple after a one-year judicial separation, which is then followed by the cooling off period under Section 13B(2). In the present case (Amardeep Singh versus Harveen Kaur), however, the judges stated that the provision under Section 13B(2) is only directory in nature and not mandatory, and reflects legislative intent.

“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. 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 a possibility of differences being reconciled.”

The Bench stated that Section 13B was enacted in order to enable both parties to dissolve their marriage by mutual consent if the marriage had irretrievably broken down, and therefore, a “forcible perpetuation of status of matrimony between unwilling partners” would ideally not serve any objectives set out in the law.

The judges contended on two conflicting views on the jurisprudence of the “cooling period”. In Anjana Kishore versus Puneet Kishore(2000), it was held that the apex court can waive off this period by virtue of its functional powers under Article 142 of the Constitution.

However, in Manish Goel versus Rohini Goel (2010), the Court held that Article 142 cannot be invoked against a statutory prescription. In M Krishna Preetha versus Dr Jayan Moorkkanatt (2010), it was submitted that Section 13B(2) is procedural.

“… 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).”

To make a decision on this, therefore, according to this case, the court should regard questions such as – duration of marriage between the parties, duration of pending litigation, duration of judicial separation, willingness of the parties to attend mediation/conciliation meetings, and lastly, whether the parties have arrived at a genuine settlement on alimony, child custody or other pending issues between them.

The issue whether family courts could waive off the period was not considered in any prior decisions. In the present case, the parties were estranged and living separately for over eight years, and the formal “cooling period” would not drive them towards reconciliation as their marriage had already irretrievably broken down.

The Supreme Court remarked: “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 ruling in Amardeep Singh versus Harveen Kaur is a pragmatic one, wherein the Judiciary has decided that the strength of a matrimonial relationship should be the driving factor for reconciliation in a marriage, instead of the rationale of more time. The court states that according to Hindu traditional law, marriage is a sacrament and consent alone cannot dissolve it. However, in an amendment in 1976, the concept of mutual divorce was introduced, and through this ruling, this concept has further evolved.

In the past, the Supreme Court has made an argument to introduce a more substantive stance and incorporate the ‘irretrievable breakdown of marriage’ as a separate ground for divorce under Section 13, in cases such as Navin Kohli versus Neelu Kohli (2006), especially after the recommendations of the 71st report of the Law Commission of India.

The present case takes a progressive step forward in this direction. It puts forth a solution where there is no forceful reconciliation between the parties, a stage where despite mutual consent, the parties are coerced into “waiting” for the possibility of a reunion.

In waiving the six-month period off in exceptional cases, the court devises a way to have minimal state (through government counsellors and social workers) intervention in the matrimonial relationships.



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