Divorce by Mutual Consent – Cooling off period

Section 13-B of the Hindu Marriage Act, 1955 states as under:
13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
In a recent judgment of the Supreme Court – Devinder Singh Narula v. Meenakshi Nangia, it was held as under:
Section 13-B itself provides for a cooling off period of six months on the first motion being moved, in the event the parties change their minds during the said period. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to wait for a period of six months before the second motion can be moved and at that point of time, if the parties have made up their minds that they would be unable to live together, the court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
It is no doubt true that the Legislature had in its wisdom stipulated a cooling off period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. It is also true that the intention of the legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation. In fact, in Kiran v. Sharad Dutt, (2000) 10 SCC 243, which was considered in Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415, after living separately for many years and 11 years after initiating the proceedings under Section 13 of the Hindu Marriage Act, the parties filed a joint application before the Court for leave to amend the divorce petition and to convert the same into a proceeding under Section 13-B of the Act. Treating the petition as one under Section 13-B of the Act, the Court by invoking its powers under Article 142 of the Constitution granted a decree of mutual divorce at the stage of the SLP itself. In different cases, in different situations, the Court has invoked its powers under Article 142 of the Constitution in order to do complete justice between the parties.

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