This article on ‘Waiting Period in Mutual Consent Divorce’ has been written by Nishant Vimal, a 3rd-year student of Symbiosis Law School, Hyderabad. The author has discussed the time exhausted in taking divorce under Section 13(B) of the Hindu Marriage Act, 2005.
About Mutual Consent Divorce
A successful marriage is a crucial element to a happy life, and sometimes due to a state of anger or any such state of like nature, couples decide to opt out of marriage. This is legally achieved by way of a divorce decree and there are many ways to approach the court regarding it. There are many situations when both the male and female decide to part ways from their marital obligations and this can be done under section 13(B) of the Hindu Marriage Act, 1955. Divorce by Mutual consent is probably the most peaceful form of divorce and it is considered to be the simplest mode of divorce by which both the parties can end their matrimonial relationship. The Marriage Laws (Amendment) Act 1976 added section 13(B) to the Hindu Marriage Act and hence, introduced mutual consent as a ground for divorce. Mutual consent has been a ground for divorce in the marriage laws governing Hindus since 1976. Prior to 1976, the only statute providing for divorce by mutual consent was the Special Marriage Act 1954 in which a couple married under the provisions of this Act could get their marriage annulled by getting a decree of divorce by mutual consent if the marriage is not surviving and the parties have accepted the terms. The Marriage Laws (Amendment) Act 1976 added section 13(B) to the Hindu Marriage Act and hence introduced mutual consent as a ground for divorce.
Mutual consent has been a ground for divorce in the marriage laws governing Hindus since 1976. Prior to 1976, the only statute providing for divorce by mutual consent was the Special Marriage Act 1954 in which a couple married under the provisions of this Act could get their marriage annulled by getting a decree of divorce by mutual consent if the marriage is not surviving and the parties have accepted the terms. The Marriage Laws (Amendment) Act 1976 added section 13(B) to the Hindu Marriage Act and hence introduced mutual consent as a ground for divorce.
The main requirements which have to be satisfied before the court for divorce by mutual consent are: Firstly, the parties in the litigation i.e. husband and wife, have been living separately for a period of at least one year. The idea behind this requirement is that if they have been living separately for this long, it is very likely that their relationship will no longer work. Supreme Court has defined “living separately”, and opined that it does not have anything related to the place of living, but instead it means that the couple is not living as husband and wife. Secondly, they have not been able to live together. Thirdly, they have mutually consented to have their marriage annulled.
The Concept of the Waiting Period and the need for it
Divorce nowadays has become a casual term, misunderstandings are something that happens on a regular interval and driven by these emotional setbacks of negative nature, it can prompt someone to take a step like a divorce without even giving it a proper thought. Waiting Period or as commonly called, ‘Cooling off period’ is a time period that is prescribed in section 13(B)(2) and it gives the parties some time to think over before actually getting a divorce decree. The law gives the parties a chance to rethink on their decision. Through this, there is less number of emotionally driven reasons for divorce that are being brought up. It has been observed that there is a significant number of people who file for divorce, but there is almost a 1/3rd decrease in that number when we see the numbers of divorce decrees granted. Any decision is subject to many errors. People make minor mistakes almost every day. This does not mean that they are irrational. And the court makes all efforts to make sure that no divorce decree is granted where there has been a mistake on part of the parties.
There is a need for maintaining and preserving any marriage, C.K. Thakker J and Lokeshwar Singh Panta J in the case of Jagraj Singh v. Birpal Kaur (1), opined that the “conjugal rights are not merely creature of statute but inherent in the very institution of marriage;” the disputes relating to marriage should never be brought to a bitter legal finish and all possible efforts must be made to make sure that the harmony is maintained between the husband and wife and the court must make efforts to solve the issue between the parties in any manner so that relationship and the conjugal atmosphere is not disturbed. Hence, the approach of a court of law in disputes related to marriage should be much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire.
Click above
The interpretation of time of motion in Section 13(B)(2)
Waiting period or cooling off period is present for the general public so the decisions of divorce are not made in a split second of anger or any miscommunication or misunderstanding. The time period prescribed is of 6 months as mentioned in the HMA, 1955. This is given for the benefit of the people approaching the court and many times the situation amongst a couple is such that the cooling off period will not do any good to the parties.
In a recent judgment of Amardeep Singh v. Harveen Kaur (2), Hon’ble Supreme Court has held that the cooling off period of 6 months, as provided for in Section 13B (2) is not a rule that is necessary to follow but an instruction, and it will be up to the court to apply their discretion as the facts and circumstances of each case may demand. The court, however, gave guidelines in order to deal with such matters where it is to be 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 parties looking for divorce must state that they have been living separately for a year,
- The parties have to state that all attempts of mediation/conciliation and other remedies have been exhausted to save the marriage, which has not worked out and there is no chance of success by any further attempts,
- The parties have to mutually settle all matters including alimony, custody of a child or any other pending issues between the parties,
- It is to be understood by the court that the prescribed waiting period will only prolong their mental agony.
This judgment has proved that there is flexibility in deciding the waiting period. the above principle has to be followed by the subordinate courts and if these are the circumstances amongst a couple, then the court should not delay the granting the divorce decree as it only prolongs the hardship faced by the parties. Therefore setting aside of the 6 month period is being considered as a step towards ultimate justice.
The flexibility in statutes is turning out to be a new norm and in the case of Kailash vs. Nanhku and Ors.
“The study of numerous cases on this topic does not lead to the formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter, and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage, Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’
“For ascertaining the real intention of the legislature’, opined by Subbarao, J. ‘the court may consider inter alia, the nature, and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If the object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”
In the case of Kanchan Mohenty vs. Kulamaril Mohenty, the court had granted the divorce decree before the expiration of the waiting period, in the subsequent appeal, the court set aside that decree as the waiting period was interpreted as being a mandate principle. However, there have been instances where the court has granted the decree before the completion of the waiting period as held in the case of Charanjit Singh Mann vs. Neelam Mann where the court opined that the period of further 6 months would only extend the litigation for no reason and do the parties no good.
This observation was opined by the court in the case of M.Krishna Preetha vs Dr.Jayan Moorkkanatt that the idea behind the waiting period is of giving them liberty and option to withdraw consent and they stated that –
“By no stretch of imagination can such waiting be held to be unnecessary or causing prejudice. To describe or reckon the said period of waiting as unnecessary and causing prejudice is to simply question the wisdom of the legislature on a civilizational and cultural aspect – regarding solemnity of marriage and the need/option to dissolve such marriage by mutual consent when no other reason is shown to exist in law justifying such dissolution of the solemn institution of marriage. No court can commit the indiscretion of questioning the wisdom of the legislature, within the area of its legislative competence.”
The decision of the Supreme Court in Anil Kumar Jain v. Maya Jain is depicting the survival of the statute prescribed under Section 13-B and that the period of waiting cannot be dispensed with.
The flexibility in statutes is turning out to be a new norm and in the case of Kailash vs. Nanhku and Ors.
“The study of numerous cases on this topic does not lead to the formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter, and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage, Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’
“For ascertaining the real intention of the legislature’, opined by Subbarao, J. ‘the court may consider inter alia, the nature, and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If the object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”
In the case of Kanchan Mohenty vs. Kulamaril Mohenty, the court had granted the divorce decree before the expiration of the waiting period, in the subsequent appeal, the court set aside that decree as the waiting period was interpreted as being a mandate principle. However, there have been instances where court have granted the decree before the completion of the waiting period as held in the case of Charanjit Singh Mann vs. Neelam Mann where the court opined that the period of further 6 months would only extend the litigation for no reason and do the parties no good.
This observation was opined by the court in the case of M.Krishna Preetha vs Dr.Jayan Moorkkanatt that the idea behind the waiting period is of giving them liberty and option to withdraw consent and they stated that –
“By no stretch of imagination can such waiting be held to be unnecessary or causing prejudice. To describe or reckon the said period of waiting as unnecessary and causing prejudice is to simply question the wisdom of the legislature on a civilizational and cultural aspect – regarding solemnity of marriage and the need/option to dissolve such marriage by mutual consent when no other reason is shown to exist in law justifying such dissolution of the solemn institution of marriage. No court can commit the indiscretion of questioning the wisdom of the legislature, within the area of its legislative competence.”
The decision of the Supreme Court in Anil Kumar Jain v. Maya Jain is depicting the survival of the statute prescribed under Section 13-B and that the period of waiting cannot be dispensed with.
The Hon’ble Supreme Court, however, is of a different opinion and has observed in the case of Arvind Sharma vs. Dharna Sharma (3), held that Section 13(B) though framed in ‘mandatory’ form is actually ‘directory’ in nature. It was observed that the Legislature has never intended to state the period of 6 months mentioned in the Act to be strictly complied with. And in fact, this section has been formulated to help two frustrated partners to be separated quickly and to help lead the remainder of their life peacefully and without any agony.
If Section 13-B (2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated. Thus, S.13-B (2), though it is mandatory in form is the directory in substance”.
This has been upheld in a number of cases like Abhay Chauhan vs. Rachna Singh and Samardeep Singh vs. Randeep Kaur where the waiting period prescribed under Section 13-B was waived off when the situations demanded so. No statute and decree shall be such that causes any litigant some sort of unnecessary mental agony and hence in the case of Devinder Singh Narula vs Meenakshi Nangia, where the apex court observed that “this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution. The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months”.
The apex court in a recent judgment in September 2017 had held that the waiting period should be relaxed within cases where there is slight or seemingly no possible way to save the marriage and all efforts at mediation and conciliation have been already been exhausted; and where parties have settled their conflict including alimony, custody of child, etc, between themselves.
If Section 13(B)(2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated. Thus, 13(B)(2), though it is mandatory in form is the directory in substance”.
This has been upheld in a number of cases like Abhay Chauhan vs. Rachna Singh and Samardeep Singh vs. Randeep Kaur where the waiting period prescribed under Section 13(B) was waived off when the situations demanded so. No statute and decree shall be such that causes any litigant some sort of unnecessary mental agony and hence in the case of Devinder Singh Narula vs Meenakshi Nangia, where the apex court observed that “this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution. The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months”.
The apex court in a recent judgment in September 2017 had held that the waiting period should be relaxed within cases where there is slight or seemingly no possible way to save the marriage and all efforts at mediation and conciliation have been already been exhausted; and where parties have settled their conflict including alimony, custody of child, etc, between themselves.
Correlation between Article 142 and Section 13(B)(2)
Article 142 of the Indian Constitution confers the inherent power to the Supreme Court that it can pass any order, decree in the exercise of their jurisdiction to ensure justice prevails in any situation that is in a matter pending before the court. In the past, the Supreme Court has given a waiver to parties for this ‘cooling period’ but these cases have been exceptional. The question posed before the court was whether courts can give relief to parties litigating with regard to the 6-month waiting period specified under the section without exercising the powers given under Article 142 of the Constitution. If the provisions are not a law and not mandatory to abide by, then there is no need for the courts to apply Article 142 for waiving off the cooling off period.
In the past, the Supreme Court has given a waiver to parties for this ‘cooling period’ but these cases have been exceptional. The question posed before the court was whether courts can give relief to parties litigating with regard to the 6-month waiting period specified under the section without exercising the powers given under Article 142 of the Constitution. If the provisions are not a law and not mandatory to abide by, then there is no need for the courts to apply Article 142 for waiving off the cooling off period.
In the past, the Supreme Court has given a waiver to parties for this ‘cooling period’ but these cases have been exceptional. The question posed before the court was whether courts can give relief to parties litigating with regard to the 6-month waiting period specified under the section without exercising the powers given under Article 142 of the Constitution. If the provisions are not a law and not mandatory to abide by, then there is no need for the courts to apply Article 142 for waiving off the cooling off period.
To answer this, the court recalled that the proper method has been stated in Manish Goel vs. Rohini Goel , laying down that the powers of the Supreme Court or the jurisdiction under Article 142 will not apply here to waive the cooling off period of 6 months before going ahead with the divorce under Section 13B, as doing so will be passing an order that is not in accordance with any of the statutory provisions. It is seen and usually accepted that, no court possesses the power to issue an order opposite to any law nor can the court order any authority to act in the indifference of the statutory provisions. The courts are meant to enforce the Rule of law and not to pass the orders or directions which are not in accordance with what has been laid down by the statutory provisions. But in recent times a lot of criticism has come the way of this judgment pronounced by Justice Chauhan, it is a wide claim that in many situations the waiting period is not needed by the parties and it can actually cause any sort of damage to be it mental damage to the husband and wife. It is also noted that the intention behind the inclusion of Article 142 of the constitution makers was to make sure that the court has inherent powers and hence their jurisdiction is great and can according to the parties convenience, waive off the statutory provision and in this case court can set that cooling off period is not necessary.
In Union of India & Ors. v. Karnail Singh, this court held that it is true that this Court when exercises its discretionary power under Article 136 or passes an order under Article 142, it does so with great care and due circumspection. But, when we are setting the law in the exercise of this court’s discretion, it should be such that it could become a binding precedent in all similar cases to arise in future and is not just a vague concept. Hence, the courts have all the powers to exercise under Article 142.
To answer this, the court recalled that the proper method has been stated in Manish Goel vs. Rohini Goel , laying down that the powers of the Supreme Court or the jurisdiction under Article 142 will not apply here to waive the cooling off period of 6 months before going ahead with the divorce under Section 13B, as doing so will be passing an order that is not in accordance with any of the statutory provisions. It is seen and usually accepted that no court possesses the power to issue an order opposite to any law nor can the court order any authority to act in the indifference of the statutory provisions. The courts are meant to enforce the Rule of law and not to pass the orders or directions which are not in accordance with what has been laid down by the statutory provisions. But in recent times a lot of criticism has come the way of this judgment pronounced by Justice Chauhan, it is a wide claim that in many situations the waiting period is not needed by the parties and it can actually cause any sort of damage to be it mental damage to the husband and wife. It is also noted that the intention behind the inclusion of Article 142 of the constitution makers was to make sure that the court has inherent powers and hence their jurisdiction is great and can according to the parties convenience, waive off the statutory provision and in this case court can set that cooling off period is not necessary.
In Union of India & Ors. v. Karnail Singh, this court held that it is true that this Court when exercises its discretionary power under Article 136 or passes any order under Article 142, it does so with great care and due circumspection. But, when we are setting the law in the exercise of this court’s discretion, it should be such that it could become a binding precedent in all similar cases to arise in future and is not just a vague concept. Hence, the courts have all the powers to exercise under Article 142.
In the landmark case of Anjana Kishore Vs Puneet Kishore (4), a bench of three Judges, exercised its jurisdiction under Article 142 of the Constitution and ordered the parties to file a joint petition before any family court under Section 13(B) of the Hindu Marriage Act, 1955 for decree of divorce by mutual consent, and also with a copy of the mutual consent of the couple. The Court further permitted the family court to consider disposing the case by waiving the waiting period of six months as required by sub-section (2) of Section 13B of the Act and pass a decree on the petition and under exercise of their jurisdiction under Article 142, it can grant relief to the parties before the statutory period of 6 months. This has proved to be a popular belief in the legal scenario that if the situations mentioned in the Amardeep Singh case are met, the waiting period should ideally be set aside.
The doctrine of irretrievable breakdown of marriage has to be applied in cases where it appears to the court that the parties cannot live together as husband and wife. This doctrine lays down the principle that when the marriage is on a stage when it cannot be retrieved or preserved and the parties can no longer cohabit or settle together. Court has to ensure that no party is forced to stay with their partner when there is no scope of any improvement in their relations. The Supreme Court has removed the ambiguity in the case of Neeti Malviya v. Rakesh Malviya (5), where it took the question of setting aside of the cooling off period to a larger bench. However, the parties appearing before the Court, who have lived separately for more than a year and have mutually decided to approach the court to part ways from their marriage. If the court is convinced that there is no possibility whatsoever for the spouses to cohabit together again, then the court can grant a decree of divorce by mutual consent in terms of the settlement reached between the parties in order to give justice and by exercising their powers under Article 142 should be the norm that should be practised. This doctrine was considered in detail in the case of Sanghamitra Ghosh vs. Kajal Kumar Ghosh, and the opinion opted for in the many other cases were corroborated based on this doctrine. It was again upheld in the case of Swati Verma (Smt.) vs. Rajan Verma & Ors.
Courts Competent to Waive off Waiting Period
Article 142 of the Constitution does not confer power to the High Courts and even the Civil Courts cannot invoke this power and hence cannot waive off the period prescribed under Section 13(B)(2) of the Hindu Marriage Act, 1955. The power under Article 142 is available only to the Supreme Court and only this court can waive off the waiting period.
In the case of Anil Kumar Jain v. Maya Jain (6), the family court in Delhi held that the statutory period prescribed under 13-B of the Hindu Marriage Act, 1955 as the court was not competent to do so and can only do as per the directions of the apex court. Also in another High Court case of Pooja Deswal Vs Sagar Deswal (7), it was held that court does not have the power to waive the statutory period of six months or condone this period prescribed under Section 13(B).
Only in certain cases as we have seen above, for example in the case of Anjana Kishore v. Puneet Kishore where family courts have waived off this waiting period if there is any situation where it will cause the parties any furthermore damage of monetary nature or any damage psychological in nature.
There are situations when even any other court apart from the Supreme Court has the need to waive off the statutory period prescribed in Section 13B (2) and it can do so by checking whether there is an irretrievable breakdown of marriage, and courts can also waive off the period in order to serve justice to the parties and prevent them from any struggles of further litigation and more mental agony to them.
Conclusion
The reader should be able to explore the nature of the provision contained in section 13(B) (2) through this article and it will benefit the legal fraternity to understand the dynamics of Waiting period in Divorce by Mutual Consent. It also sheds light on the legal Aspects and moral aspects of the same Waiting period. The two possible opinions are whether the said provision is mandatory or merely directory. It is seen that the nature of section 13(B)(2) is directive and it is not a mandatory law and hence court can exercise their powers under Article 142 and outshine statutory provisions. It will be at the option of the Court to exercise its discretion in different cases where there is seemingly no possibility of parties to resume cohabitation and saving the marriage. The role of all the statutory provisions and the court is to maximize convenience to the general public and if the parties demand so, by removing the cooling off period, judiciary and legislature are functioning in the fairest, just and reasonable way.
References
- AIR 2007 SC 2083.
- 2017 SC 1073.
- (1998) 1 SCC 22.
- (2002) 10 SCC 194.
- (2010) 6 SCC 413.
- (2009) 10 SCC 41.
- 2014 (3) RCR 539.
