SC says 6 Months Waiting Period for Divorce by Mutual Consent is not mandatory

In a recent landmark case of Amardeep Singh v. Harveen Kaur[13], the Supreme Court made a notable observation by holding that 6 months waiting/ cooling –off period as contemplated under Section 13B(2) of the Act is not mandatory.

The Supreme Court held that the period of interregnum or cooling off period of 6-18 months provided under Section 13B(2) of the Hindu Marriage Act, 1955  is not mandatory but a directory provision and can be waived off under certain circumstances.

The Court further observed that in view of this, Courts can exercise its discretion depending on the facts and circumstances of each case and waive off the stipulated period where there is no possibility of resuming cohabitation and there are chances of alternative rehabilitation.

In this case, the parties were living separately since 2008. In 2017 the parties arrived at a settlement and applied for divorce by mutual consent. In the case, the parties prayed the Court to waive off the period of 6 months as prescribed under Section 13B(2) of the Hindu Marriage Act, 1955 on the ground that they have been living separately for the last 8 years and that there was no possibility of their re-union.

Key takeaways from the Court’s verdict:

The Supreme Court stated that 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 :

• The statutory period of six months specified in 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;
• That all efforts for mediation/conciliation to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
• That the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties
• That 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 concerned Court.
• That as the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. The Court also stated that such proceedings can also be conducted through video conferencing.