DIVORCE, MADE EASY UNDER HINDU LAW.
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Shajeeda O.M Tajdeen, (LLM), S.N.D.T University
The Supreme Court bench comprising of Justices A.K. Goel and U.U. Lalit on Tuesday (12/09/2017) declared that the mandatory cooling period of 6 months which is provided before granting divorce decree under mutual consent, could be waived off if there are no possible chances of reconciliation. This period can only be renounced in situations where the possibility of cohabitation of the estranged couple is almost zero. The Apex Court while pronouncing this judgment made it very clear that the act of renouncing the cooling period would be purely at the discretion of the Court. The judgment given by the Supreme Court states that, the trail courts would have full liberty to decide whether or not to waive off the cooling period, depending upon the facts and circumstances of the case.
Section 13B of the Hindu Marriage Act,1955 permits a couple to apply and seek for divorce under mutual consent. It further states, the criteria of mutual consent should prevail at the time of passing of divorce decree also. If at the time of enquiry, the Court finds out that there is no mutual consent between the couple, then the Court would refrain itself from granting the divorce decree under this section on the basis of lack of jurisdiction. The Hindu Marriage Act, 1955 lays down that it is mandatory for the courts to provide a 6 months cooling period before granting divorce, this is done to explore all the possibilities of settlement and cohabitation, between the couple. This section further states that a couple seeking divorce through mutual consent will have to prove to the Court that they have been living separately for a year. After which the Court adjourns the matter for 6 months and if no signs of reconciliation are shown by the couple, the divorce is granted after the second motion.
The Supreme Court further stated, that the couples seeking divorce under mutual consent can file a waiver application with the concerned trial court, after one week of filing the first motion in the said court. The Apex Court further stated the main motive behind the concept of ‘cooling period’ was to protect and preserve the constitution of marriage against the hurried decision of the couples, because even today, marriages are considered to be sacred in our nation and culture. The Apex Court also permitted the trial courts to use video conferencing while conducting such proceedings and it also stated that if the parties cannot appear in person for any valid and just cause, they can be represented by their ‘close relations such as siblings and parents’.
The Apex Court went on to clarify the object of section 13B, by stating that, nor does section 13B aims to conserve and continue a pointless and empty marriage and neither does it wish to extend the suffering of the parties, if reconciliation and cohabitation is impossible. The Top Court declared that if there is a possibility of a fresh rehabilitation in the future, the present marriage should be annulled by granting divorce to the couple, which would allow the parties to opt for a better option.
The decision of relaxing the cooling period was pronounced after a couple moved the court for divorce under mutual consent after eight years of living separately wherein they have settled all the matters of custody and alimony amicably. The couple requested the court to grant them with divorce without following the concept of ‘cooling period’, as this would affect their chances of re-settling in future.
This verdict of the Apex Court will enable estranged couples to seek for quick dissolution of their marriages by waiving off the cooling period, if they are successful in satisfying the Court that even after providing ‘cooling period’ the chances of reconciliation and mediation would be impossible. Thus, the final decision of relaxing and renouncing the cooling period remains with the trial courts only.