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6-Month Cooling off period for granting divorce not mandatory: SC

On Tuesday, the Supreme Court in a Special Leave Petition held that the waiting period of 6 months for divorce by mutual consent as prescribed under Section 13B(2) of Hindu Marriage Act, 1956 can be waived off under certain circumstances.
Written by:
Shivi Gupta
Published on
24-Aug-18

On Tuesday, the Supreme Court in a Special Leave Petition held that the waiting period of 6 months for divorce by mutual consent as prescribed under Section 13B(2) of the Hindu Marriage Act, 1956 can be waived off under certain circumstances.  The waiting period under Section 13B was compulsory to prevent couples from taking any hasty decision to terminate their marriage. The court held that the waiting period will only prolong their agony. The court also said that in conducting the proceedings, the trial court can also use video conferencing and permit genuine representation of the husband and wife through close relations, such as parents or siblings, where the parties are unable to appear in person for any just and valid reason as may satisfy the court.

 

Earlier, there were conflicting views in this regard by the Supreme Court itself. In 2002, in the case of Anjana Kishore v Puneet Kishore, the apex court held that the period of six months can be waived under Article 142 of the Indian Constitution. A contrary view was taken in the case of Manish Goel v Rohini Goel, wherein it held that the article can’t be invoked to a statutory prescription.  The following circumstances are to be looked after in order to waive the statutory period of 6 months: The statutory period of one year as specified under Section 13B(1) is already over before the first motion itself. There is no likelihood of success and all efforts of mediation to reunite the husband and wife have failed. The estranged couple has settled their differences including custody of child or alimony.

In view of the above findings, court said that the period of six months under Section 13B(2) was the only directory in nature and not mandatory and it’s up to the discretion of the court to consider the possibility of parties resuming cohabitation and alternative rehabilitation by having a thorough look into the facts and circumstances of the case. 

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