SC de-mandates 6 month cooling off period in divorce
After declaring triple talaq unconstitutional, now the apex court, in a judgment, has cut the waiting period for divorce by six months under the Hindu Marriage Act, 1955.
In a big reprieve to couples who have approached courts for divorce, and who have no hopes of reconciling with their life partners, the Supreme Court (SC), in a path-breaking verdict delivered on Tuesday, September 13, said that the courts can, depending upon individual circumstances, waive the cooling-off period of six months after the couple file for divorce with mutual consent.
Currently, under the Hindu Marriage Act, after a couple files for divorce claiming mutual consent, it has to wait for 18 months to actually get the divorce: 12 months of separation has to be established, followed by a six-month "cooling off" period that is intended to allow for reconciliation.
Ruling that it is pointless to "perpetuate a purposeless marriage and to prolong the agony of the parties", the Supreme Court today made a big change to the rules for Hindu couples looking to divorce. However, the SC has stipulated that this waiver is applicable only in case of mutual divorce applications, and under situations in which the couple find it impossible to live together.
While some individuals are rejoicing over the decision calling it a good move, others feel that the six month cooling-off period is very essential and it should be waived off under special circumstances only.
Advocate Baharun Saikia, talking to G Plus regarding the recent verdict said, “In my opinion, if a couple has come to court for mutual divorce, it means that they do not want to stay together and there’s no chance for them to reconcile. But still, the divorce should only be finalised after following legal procedures and it must be ensured that neither party has been forced to file for mutual divorce.”
The High Court lawyer further added, “I’m in support of waiving off the 6 month long cooling period, but there must be a special cause for doing so. In a recent case registered in Family Court, Kamrup Metro, the 6 months’ waiting period had been waived off due to the circumstances – the Guwahati girl, settled in London with a desire to become a nun, was married off to a US-based boy without her consent. The girl expressed her views to the boy on their first night itself and they filed for a mutual divorce. The divorce was finalised within 3 days due to the special causes involved in the matter.”
Meghali Kalita, a divorce lawyer at Family Court, Guwahati informed G Plus about the current trend of divorce in Guwahati saying, “There has been a tremendous increase in the number of divorce cases in Guwahati. Couples with petty issues that can be resolved over a short span of time have also started to file for divorces. But the most common reason behind divorces in Guwahati is extra-marital affairs. Apart from that, the common reasons include economic condition of the husband, women’s infidelity and incompatibility.”
It should be noted that between January 1, 2017 and September 15, 2017, a total of 814 divorce cases have been registered at the Family Court, among which 215 cases are that of mutual divorce. The numbers are expected to exceed 1,200 by the end of the year. These numbers do not reflect the total number of cases in the city, but only those registered in Family Court. The data is for Kamrup (Metro) only.
Advocate Meghali Kalita further stated that the six month cooling-off period is very important because many a time the divorce is filed based on misunderstandings. In those six months and after the three sessions of counselling, the misunderstandings can be removed. “Unlike other cases where each lawyer wants his or her client to win, in divorce cases, we try to unite the couple. Even in front of the judge, we provide counselling to the couple,” she elaborated.
She gave further reasoning as to why the six months period mentioned in section 13B (2) is important, “I’ve seen cases when the couple files for divorce over petty issues; they do not pay attention during counselling nor do they understand the importance of the cooling-off period and the divorce gets finalised. But after a few months or years of separation, they again get back together. Apart from that, I’ve also received cases where the couple writes a certain reason in their petition, but it’s during counselling, investigations and evidence period that we get to know of the real issues.”
From January 1, 2017 to September 15, 2017, a total of 814 divorce cases have been registered at the Family Court, among which 215 cases are that of mutual divorce.
G Plus got in touch with another lawyer at the Family Court, Advocate Priyanka Hazarika, who expressed her views over the verdict stating, “It’s high time that the laws for divorce are revised. The common mentality has become such that the citizens find divorce the easiest solution to get over with their fights. Marriage is a lifetime commitment, not a temporary phase and the court shouldn’t finalise the divorce unless and until the cases are such that they just cannot be resolved. We need stricter laws, especially for contested divorce (one-sided divorce).”
Looking at the high number of cases being reported on a daily basis, indeed, stricter laws for contested divorce are needed. And now that the SC has ordered to ease the procedure for mutual divorce, wherein it’s for the judges to decide whether six month cooling-off period should be waived or not, we can only hope the waiver is given only after every effort has been made to save the marriage.
How and whom does this apply to?
1. New rule affects couples seeking divorce through mutual consent only
2. 6-month waiting period after one year of separation not mandatory (necessary to establish 12 months of separation)
3. Judges can decide whether to waive off the 6 months cooling-off period after divorce petition has been filed with mutual consent
4. The same will not be applicable for contested divorce petitions
SC de-mandates 6 month cooling off period in divorce