Supreme Court Rules Six-Month Waiting Period for Mutual Divorce Under Hindu Marriage Act is Directory, Not Mandatory

SC empowers Family Courts to waive statutory six-month cooling-off period in exceptional cases where reconciliation is impossible, paving way for expedited divorce proceedings.

In a landmark judgment delivered on September 12, 2017, the Supreme Court of India in the case of Amardeep Singh v. Harveen Kaur has clarified the legal position regarding the six-month waiting period mandated under Section 13B(2) of the Hindu Marriage Act, 1955, for divorce by mutual consent. The Court held that the six-month period is not mandatory but directory, thereby allowing courts the discretion to waive this statutory period in exceptional circumstances.

The case arose from a matrimonial dispute where the parties, married since 1994 and living separately since 2008, sought divorce by mutual consent. They had resolved all disputes, including permanent alimony and child custody arrangements. The appellant husband had already paid Rs. 50 lakh towards alimony, and the couple had two children, with custody to remain with the husband. The parties requested the Court to waive the six-month waiting period, citing that further delay would only prolong their agony given their long separation and no prospect of reunion.

The Supreme Court examined the conflicting precedents on whether the six-month cooling-off period under Section 13B(2) was mandatory or could be waived by courts, including the apex court’s power under Article 142 of the Constitution to do complete justice. Earlier, in Manish Goel v. Rohini Goel (2010), a two-judge bench had held that the Court could not waive the statutory period under Article 142, as it would contravene statutory provisions. However, later decisions showed inconsistency, with the Court exercising this power in cases of irretrievable breakdown of marriage.

After considering these precedents and the object and purpose of the cooling-off period, the Supreme Court ruled that the six-month waiting period is primarily designed to provide a ‘cooling off’ phase to enable possible reconciliation between spouses. However, where it is clear that the marriage has irretrievably broken down and all efforts of mediation and conciliation have failed, the period can be waived to prevent further suffering.

The Court laid down specific factors that the Family Court must consider before waiving the six-month period:

1. The parties have already been living separately for over one year before the first motion itself.

2. All efforts for mediation or conciliation under relevant legal provisions and Family Court rules have failed, with no likelihood of success.

3. The parties have settled all pending issues genuinely, including alimony, custody, and other disputes.

4. Prolonging the waiting period will only increase the agony of the parties.

The Court also clarified procedural aspects, stating that an application to waive the waiting period can be filed one week after the first motion with proper reasons. It emphasized that courts could use modern means such as video conferencing and allow representation through close relatives if parties cannot appear in person, to further justice.

This ruling balances the legislative intent behind Section 13B, which aims to safeguard against impulsive decisions, with the humane need to relieve parties from prolonged agony in hopeless matrimonial situations. The judgment recognizes the evolving nature of matrimonial disputes and the importance of facilitating timely justice while preserving the scope for reconciliation where possible.

The Supreme Court disposed of the appeal accordingly, leaving the parties free to seek fresh consideration before the Family Court in light of the judgment.

This judgment will have far-reaching implications for matrimonial law practice in India, enabling courts to exercise discretion in granting mutual consent divorces without rigidly adhering to the six-month waiting period where circumstances justify waiver.

Statutory provisions

Hindu Marriage Act, 1955 Section 13B(1), Section 13B(2), Civil Procedure Code Order 32A Rule 3, Family Courts Act Section 9

Amardeep Singh v. Harveen Kaur, (SC) : Law Finder Doc Id # 899268