Six Months Cooling-off Period Non-mandatory Under Hindu Marriage Act Declares Supreme Court

Team SoOLEGAL 13 Sep 2017 10:14am

Six Months Cooling-off Period Non-mandatory Under Hindu Marriage Act Declares Supreme Court

The Supreme Court ruled out the minimum compulsory period of six months specified under  Section 13B(2) of the Hindu Marriage Act, 1955 (Act) for a passing decree of divorce based on mutual consent and held that it can be waived by courts according to the facts and circumstances of the case.

The bench comprising of the Justices UU Lalit and AK Goel passed on the judgment after hearing an appeal against the order of the Delhi High Court. The issue under consideration was if the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for passing decree of divorce on the basis of mutual consent should be a mandate or if the parties can be exempted under exceptional circumstances. 

After going through the submission of the parties as well as the Amicus Curiae brief background of the relevant provision Section 13B(2), the court maintained that the object of the provision is to grant permission to the parties to dissolve a marriage that is broken down and can not be sustained by any means along with rehabilitating the parties in a well-suited manner.

The court said that the motive behind the cooling-off period as prescribed by the provision meant to protect against a hasty decision and it by no means aims to sustain an aimless marriage. 

“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 the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. 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.”

Afterwards, the court went on to consider whether the cooling-off period is mandatory or directory. As per the court, while deciding the same context, the subject matter and the object of the provision are important and therefore be regarded well. 

It, therefore, maintained that the period mentioned in the section 13B(2) is not mandatory but directory and came up with the order given as under:

we are of the view that where 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:

i) 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;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/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;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

As the period mentioned in Section 13B(2) is not mandatory but a directory, the court held that it will be up to the court to use its judgment in the facts and circumstances of particular cases in which there are no chances of parties resuming cohabitation and there are possibilities of alternative rehabilitation.

Tagged: Supreme Court   Hindu Marriage Act   Section 13B   Justice AK Goel   justice UU Lalit  
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