The Exemption of the Statutory Period in Divorce

The Exemption of the Statutory Period in Divorce

Anannya Varghese Parakkal
B.A.,LL.B Sem 4 student at Amity University
Intern at Jimson Associates
Thrissur – 680 001

In India, arranged marriages are the centuries old tradition dating back to the fourth century. The culture of arranged marriage is considered as a foundation stone of the Indian marriage system. But over the years there has been changes in marriage. Couples see divorce as also a part of it. Before 1858, taking a divorce was difficult and rare. The couple used to live in misery than take a divorce.2 Divorce is only possible after a year of marriage. However, the numbers appeared to be rising at an alarming rate.

In India, Divorce is a personal matter and relates to religion . According to the United Nations study “Progress of the World’s Women 2019-2020: Families in a Changing World,” non-marriage is still exceedingly unusual in India, although divorce rates have doubled in the last two decades. Despite the rising divorce rate, the survey found that only 1.1 percent of women in India are divorced, with women in urban areas accounting for the highest proportion. Divorce rate in India ranks lowest among all the countries of the world.

Professor Clark defines divorce simply as “the termination of a valid marriage,” In India due to the codification of the divorce law, men and women are now equally able to seek divorce as a result. The Hindu Marriage Act, 1955 governs the divorce for the Jains, Sikhs, Hindus and Buddhists, the Muslims by Dissolution of Muslim Marriage Act, 1939, the Parsis by Parsi Marriage and Divorce Act, 1939 and Christians are governed by the Indian Divorce Act, 1869. Civil and inter – community marriages are governed by the Special Marriages Act, 1954.

The marriage can be dissolved through various sections for all communities in India. As per Section 13B of Hindu Marriage Act, 1939, husband and wife can dissolve their marriage by Mutual Consent Divorce. For the couple who married inter – religion or through court marriage can file for Mutual Divorce under Section 28 of the Special Marriage Act, 1954. Couple who married under Christian Law can get Mutual Consent Divorce under Section 10A of Divorce Act, 1869.

Under the Hindu Marriage Act, 1955, Section 13B (2) prohibits a divorce from being granted before six months have passed since divorce petition was filed by mutual consent. The time limit was set to allow the parties to reconsider their positions so that the court will only grant a divorce by mutual consent if there is no hope of reconciliation. Section 10A of the Divorce Act, states that the couple will be granted divorce on the ground that they have been living separately for a period of two years or more and prohibits a divorce from being granted before six months have passed since divorce petition was filed by mutual consent. The spouses must “have been living separately for a period of two years or more” is declared to be unconstitutional as the stipulation of the period of “two years” therein violates the fundamental rights to equality and the right to life under Arts.14 and 21 of the Constitution in the case of Saumya Ann Thomas vs The Union Oof India . Section 28 of the Special Marriage Act, 1954 which also deals with divorce on grounds of mutual consent is Pari Materia to Section 13B of the Hindu Marriage Act, 1955

The Cooling – off Period

The Hindu Marriage Act, 1955, Section 13B, allows married couples to seek divorce by mutual consent by submitting a petition in court with the help of a divorce lawyer. Both couples agree to a peaceful separation in a Consensual Divorce. Section 13B (2) of the Hindu Marriage Act, 1955 states that for a statutory interregnum understanding, a cooling period of six months between the first and the last motion for divorce by consensual consent to explore the possibility of settlement and cohabitation. That statutory period is termed as the cooling period.In Amardeep Singh v. Harveen Kaur, the Supreme Court considered whether this six – month cooling – off period could be waived.

The landmark case of Amardeep Singh , the couple were married in 1994 and since 2008 they were living separately. They sought waiver of the period of six months for the second motion on the ground that they have been living separately for the last eight years and there is no possibility of them re union. Any delay will affect their chances of being resettled. The parties petitioned the Supreme Court, claiming that only the Supreme Court has the authority to relax the six – month period, as per previous decisions of this Court. The question arose whether the exercise of power under Article 142 of the Constitution to waive the period under Section 13B (2) of the Hindu Marriage Act was mandatory or directory?

The court decided that Section 13B (2) is advisory rather than mandatory, and that in the future, any court dealing with a mutual divorce case that is satisfied that an appropriate case has been made out to waive the cooling-off period may do so subject to the following:

The court further stated that such an application for waiver of the six-month period may be made one week after the initial motion, with sufficient reasons. If the criteria are met, the court will decide whether to waive the cooling-off period. This Court recognized that Article 142 power had been used in cases when the Court determined that the marriage was completely unworkable, emotionally dead, beyond repair, and irreversibly broken down. This power was also used to halt any litigation and save the parties from additional suffering. In Nikhil Kumar vs. Rupali Kumar wherein the statutory period of six months was waived by this Court under Article 142 of the Constitution and the marriage was dissolved.

In a similar case, Dineshkumar Shukla vs. Neeta, the court held that under sub – section (2) of Section 13B, the waiting period can be brought down from six months, where a divorce petition was already pending for more than six months. It was also contended that the provisions prescribing time-limit for doing any act are generally presumed to be directory. In support of this contention, reliance has been placed on the decision of the Supreme Court reported in AIR 2003 SC 4603. He also referred to decision of Andhra Pradesh High Court reported in AIR 1986 AP 167 , decision of Gujarat High Court reported in AIR 1988 Guj 159 and decision of Delhi High Court reported in AIR 1990 Delhi 146 .

After the ruling of the Amardeep Singh’s case, the waiving of the 6 – month cooling – off period was also considered under Special Marriage Act and the Indian Divorce Act, like in the case of Tomy Joseph vs. Smitha Tomy, the couple solemnised their marriage in 1999 under Divorce Act, 1869 and have been living separately since 2016. They filed for divorce under 10A of the Divorce Act and filed an application for waiving the cooling period of 6 months. The family Court dismissed the petition seeking to waive the 6 – month period for making the second move for divorce. The court stated that there is no provision in the Divorce Act to waive the 6 – month period. Challenging this order, the couple moved to the High Court. The High Court observed that only substantial difference between the law applicable to Hindus and Christians is that, instead of the period of 1 year mentioned in section 13B (1) of the Hindu Marriage Act, 1955 and Section 28 (1) of the Special Marriage Act, 1954, a period of 2 years of separate residence is provided under Section 10A (1) of the Divorce Act, 1869. Referring to Amardeep Singh vs. Harveen Kaur, the bench that the dictum laid down in the said case would be applicable in the case of a petition filed under Section 10A of the Divorce Act also.

In these cases, the husband and wife were married for more than a year as account to section 14 of the Hindu Marriage Act, but in the case of Akshara A. v. Rohin S. Raveendran , from the first day of marriage, the couple felt that they cannot live together. Hence, they sought for a decree for dissolution of marriage on mutual consent with the waiver of the cooling – off period. Along with the petition, they also filed an application for waiving of one year waiting period. Family Court dismissed the petition seeking waiving of waiting period. Aggrieved, the petitioners filed this petition under Article 227 of the Constitution.

Section 14 of Hindu Marriage Act, states that that no petition of divorce could be filed within the first year of marriage. As a result, one year could be viewed as the time allotted by the law to solve, sort, understand, and communicate difficulties with one another. Thus, no court has the authority to hear a divorce petition unless a one – year period has passed. However, upon receiving an application in accordance with the rules made by the High Court, the Court may allow the petition to be presented in case of one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.

The Court stated in E.M Sweety vs. Sunil Kumar K. B , referring to the judgement of Pooja Gupta v. Nil, where both parties filed for divorce under section 14(1) of the Act, since they have never resided together from the very first day of their marriage and the marriage had not even been consummated. They further stated that they have irreconcilable differences between them and being professionals will suffer mental as well as physical hardship on account of the continuation of their marriage.

“The basic requirement in entertaining an application under Section 13B or under Section 14 of the Act is to see that the courts are satisfied that the essential reason for exemption for filing a divorce by mutual consent prior to the expiry of one year after the marriage, is not under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent. The continuation of such a marriage is bound to cause undue hardship to both the husband and wife. ”

The difference between Amardeep Singh and Akshara A. case

Amardeep Singh and Akshara A. are two different aspects, but both want the waiving of the cooling – off period. In Amardeep’s case, they want the 6 – month cooling off period to be waived off after the second motion [Section 13B (2)] on the ground that they have been living separately for the last more than eight years and there is no possibility of their reunion. While in Akshara’s case they lived together hardly for a month after marriage and sought for waiving of one year waiting period after marriage (Section 14) and for the waiver of 6 months cooling – off period [Section 13B (2)].

In the Amardeep’s case the court ruled that the purpose of 13B (2) is to allow the parties to dissolve a marriage by consent if it has irreversibly broken down and to allow them to rehabilitate the marriage using available options, and the cooling off time is important to avoid impulsive decisions. In this regard it was held by the court that Court where it is satisfied that a case is made out to waive the statutory period under Section 13B (2), it can do so after considering the given set of rules (supra). If the given conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the Court.

While in Akshara’s case, the Court observed Pooja Gupta’s case (supra) the Delhi Court observed that, the relevant consideration while granting exemption from the expiry of one year period for filing a petition for divorce by mutual consent are:

The Court asked the family court to dispose of the case within the earliest time possible and regarding the waiving of the cooling – off period, the Court stated that the period of 6 months from the date of presentation of the original petition stands expired.

The powers of Article 142 of the Constitution

Article 142 provide(s) a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. The Supreme Court has granted parties a waiver for this “cooling period” in the past, but only in rare circumstances. The court was asked whether it could grant relief to parties who were suing over the 6 – month waiting period specified in the provision without using the powers granted under Article 142 of the Constitution. If the provisions are not a law and are not required to be followed, the courts are not having to use Article 142 to waive the cooling-off period.

In the case of Amardeep Singh,the question which came up for consideration before the Hon’ble Supreme Court was whether exercise of power under Article 142 of the Constitution to waive the period under Section 13B (2) of the Hindu Marriage Act was mandatory or directory. The Hon’ble Supreme Court referred to its decision in Manish Goel vs. Rohini Goel, in which the Court held that the court's jurisdiction under Article 142 could not be used to waive the statutory period of six months for the second motion under Section 13B, as doing so would be passing an order in violation of the law.

In another case in 2012, the Andhra Pradesh High Court upheld a family court’s judgment to deny the man’s divorce petition because he was unable to substantiate his wife’s cruelty. The man’s divorce was also denied by the family court due to the irreversible disintegration of the marriage. The man then filed for divorce at the Supreme Court. The court observed that all efforts to continue the marriage had failed and there was no possibility of re-union because of the strained relations between the parties. 28The court ruled that the case was suitable for the invocation of Article 142 of the Constitution with a compensation in the form of permanent alimony for the woman

Conclusion

Rising urbanization and increased awareness of numerous rights are causing the divorce rate to rise, especially during this pandemic, the couples have become more and more restless of each other and are craving to be alone. Now getting a divorce has just become easier. Couples do not even have to step into the court for getting a divorce because it is possible through videoconferencing. More and more people are opting for divorce by mutual consent for a fast – track divorce. Couples do not want their agony to last longer and move on from their partners as soon as possible. They want no space for agony or any other trouble in their lives. The waiting period provided between the marriage and after the first motion by the court for divorce is to explore the possibility of settlement and cohabitation. Even though the waiting period is given as a positive aspect of the society but sometimes, waiving this period is necessary as the waiting period will only worsen the situation.

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