Hindu marriage is traditionally considered to be a sacred union; a devout relationship that lasts till eternity. The Hindu Marriage Act provides the right to approach the court for dissolution of Hindu marriage by grant of a decree of divorce on the grounds mentioned in Section 13 thereof. The provisions of the Hindu Marriage Act have undergone considerable changes over a period of time.
Section 13(1)(i-a) was enacted by the Marriage Laws (Amendment) Act, 1976to provide for divorce in cases of cruelty. Section 13B of the Hindu Marriage Act was introduced for providing divorce by mutual consent. Explanation was added to section 9 of the Hindu Marriage Act, which relates to restitution of conjugal rights, stating that where a question of whether there has been reasonable excuse for withdrawal from society arises, the burden of proving reasonable excuse shall be on the person who has so withdrawn from the society.
The effect of the said amendment, as noticed below, partially dilutes the rigours of sub-section (1)(a) to section 23 of the Hindu Marriage Act, which stipulates that the court, while examining whether any ground for granting relief exists, should be satisfied that the petitioner is not, in any way, taking advantage of his/her own wrong or disability for the purpose of such relief.
Section 13B of the Hindu Marriage Act
Section 13B of the Hindu Marriage Act reads 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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.”
Procedure
Section 13B(1) of the Hindu Marriage Act states that a decree of divorce may be granted on a joint petition by the parties on fulfilment of the following conditions:
(a) the parties have been living separately for a period of one year or more before presentation of the petition;
(b) they have not been able to live together; and
(c) they have mutually agreed that the marriage should be dissolved.
Sub-section (2) to Section 13B of the Hindu Marriage Act provides that after the first motion is passed, the couple/parties would have to move to the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than eighteen months of the first motion. No action can be taken by the parties before the lapse of six months since the first motion. When the second motion is filed, the court is to make an inquiry, and on satisfaction that the averments made in the petition are true, a decree of divorce is granted.
Clearly, the legislative intent behind incorporating sub-section (2) to Section 13B of the Hindu Marriage Act is that the couple/party must have time to introspect and consider the decision to separate before the second motion is moved. However, there are cases of exceptional hardship, where after some years of acrimonious litigation and prolonged suffering, the parties, with a view to have a fresh start, jointly pray to the court to dissolve the marriage, and seek waiver of the need to move the second motion. On account of irreconcilable differences, allegations and aspersions made against each other and the family members, and in some cases multiple litigations including criminal cases, continuation of the marital relationship is an impossibility.
The divorce is inevitable, and the cooling off period of six months, if at all, breeds misery and pain, without any gain and benefit. These are cases where the object and purpose behind sub-section (2) to Section 13B of the Hindu Marriage Act to safeguard against hurried and hasty decisions are not in issue and question, and the procedural requirement to move the court with the second motion after a gap of six months acts as an impediment in the settlement. At times, payment of alimony and permanent lump-sum maintenance gets delayed, while anxiety and suspicion remain. Here, the procedure should give way to a larger public and personal interest of the parties in ending the litigation(s), and the pain and sorrow effected, by passing a formal decree of divorce, as de-facto the marriage had ended much earlier.
Analysing the provisions of sub-section (2) to Section 13B of the Hindu Marriage Act, Supreme Court in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 went into the question of whether the cooling off period of six months is mandatory or discretionary. It was held that the cooling off period can be waived by the court where the proceedings have remained pending for long in the courts, these being cases of exceptional situations. It was held thus:
“14. The learned Amicus Curiae submitted that waiting period enshrined under Section 13B(2) of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by the judgments of the Andhra Pradesh High Court in K. Omprakash v. K. Nalini, Karnataka High Court in Roopa Reddy v. Prabhakar Reddy, Delhi High Court in Dhanjit Vadra v. Beena Vadra and Madhya Pradesh High Court in Dineshkumar Shukla v. Neeta. Contrary view has been taken by the Kerala High Court in M. Krishna Preetha v. Jayan Moorkkanatt.
It was submitted that Section 13B(1) relates to jurisdiction of the court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the court should consider the questions:
(i) How long parties have been married?
(ii) How long litigation is pending?
(iii) How long they have been staying apart?
(iv) Are there any other proceedings between the parties?
(v) Have the parties attended mediation/ conciliation?
(vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
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19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following:
(i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
(iv) the waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.”
The time gap is meant to enable the parties to cogitate, analyse and take a deliberated decision. The object of the cooling off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out. Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant divorce. The waiver is not to be given on mere asking, but on the court being satisfied beyond doubt that the marriage has shattered beyond repair.