No patch-up in sight? Supreme Court says six-month cooling period for granting divorce can be waived

The period of six months before granting divorce, under the Hindu Marriage Act, can be waived off by the trial court if there is no possibility of cohabitation between an estr­a­n­g­e­d couple.

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NEW DELHI:The minimum cooling period of six months before granting divorce, under the Hindu Marriage Act, can be waived off by the trial court if there is no possibility of cohabitation between an estr­a­n­g­e­d couple, the Supreme Court held on Tuesday.

“The six month cooling off per­iod can be waived off by the cou­rts in cases of divorce through mutual consent,” said justices A K Goel and UU Lalit, interpreting the Hindu Marriage Act.
Under section 13B of the Act, an 18-month separation period is compulsory before a decree for divorce can be passed. Un­der Section 13B(1), a divorce pe­­tition can be moved by a couple following a judicial separation of one year. Followed by another six months of waiting period under Section 13B(2) for getting a decree.

However, the court held that Section 13B(2) is not mandatory but directory in nature in view of the legislative intent and the objective of the provision. “Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case wh­e­r­e there is no possibility of parti­es resuming cohabitation and th­e­re are chances of alternative rehabilitation,” it held.

The bench said, “Section 13B was enacted to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down, and hence forcible perpetuation of status of matrim­ony between unwilling partners would not serve any purpose.”

“The object of the cooling off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled,” the bench said adding every effort should be done to save a marriage. “If there are no chances of reunion, the court should not be powerless in enabling the parties to have a better option,” the court said.

What does the existing law say?

As per the Hindu Marriage Act, a divorce petition can be filed at a district court on the ground that a couple has been living separately for one year or more, has not been able to live together and has mutually agreed the marriage should be dissolved