INTRODUCTION
Section 13B(2) of the Hindu Marriage Act, 1955[1] contains a bar to divorce being conceded before a period of six months elapsing after filing of the divorce petition by mutual consent. This period of six months was laid down in the Act to give the parties a reasonable time for reconsideration of their decision to dissolve their marriage and seek a divorce. This period is provided to the parties to be sure of their decision of dissolving their marriage because a divorce by mutual consent is passed only when no possibility of reconciliation can be seen.
However, this period of six months, popularly known as the “cooling period” is only advisory and can be waived off by the competent Court in certain exceptional cases. When the Court is satisfied that the parties have mutually decided to dissolve their marriage and there is no chance of reconciliation between them then, in such cases, for the best interest of the parties, the Courts waive off the cooling period of six months. The most common ground on which the Courts have waived off this cooling period of six months mentioned under Section 13B(2) of the Hindu Marriage Act, 1955 is that the parties have been residing separately for more than the period mentioned therein and have decided to part ways.
Some of the landmark cases with respect to this topic are:
- Amardeep Singh v. Harveen Kaur[2]: This case is considered to be one of the most important cases when it comes to the waiver of the cooling period under Section 13B(2) of the Hindu Marriage Act, 1955[3]. In this case, the Supreme Court of India had decided to waive off the cooling period of six months enshrined under Section 13B(2) of the Hindu Marriage Act, 1955[4]. The Supreme Court had expressed, “the waiting period enshrined under Section 13-B(2) of the Act is a directory and can be waived by the Court where proceedings are pending, in exceptional situations”[5]. In this case, both the parties mutually prayed before the Apex Court to waive off the cooling period since they were living separately for more than eight years and there was absolutely no chance of them continuing their marriage. The Court expressed, “the object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation”[6].
- Harjinder Singh v. Rajpal[7]: After the famous case of Amardeep Singh v. Harveen Kaur[8], the Supreme Court of India dealt with a similar case in 2018 wherein the parties had been in the litigating stage and living separately for over two decades. No chance of reconciliation could be seen in this case and hence the Apex court held, “having regard to the fact that the parties have been litigating and living separately for around two decades, we are convinced that the parties have taken a free and conscious decision. In the background of the long separation and the long pending litigation, we are of the view that the further period of waiting should be dispensed with”[9]. The intention behind providing a cooling period of six months is only to ensure that the parties have vehemently decided on dissolving their marriage and if there are any chances of sorting the issues out, then that may be done within this period. If it is evident that there is no scope or reconciliation, then there is no point in waiting for another six months to dissolve the marriage.
- Dhanjit Vadra v. Beena Vadra[10]: The High Court of Delhi had passed a similar judgment in the year 1990. In this case, the parties contended that they had been living separately for more than a year and they have mutually decided to dissolve their marriage. In lieu of this, the Delhi High Court allowed their petition to waive off the cooling period of six months since the Court was satisfied that the parties have, after due discussion, agreed to seek divorce mutually.
- Roopa Reddy v. Prabhakar Reddy[11]: In this case, the parties had filed a petition requesting for the waiver of the statutory period or the cooling period enshrined under Section 13B(2) of the Hindu Marriage Act, 1955 as they had been living separately and had also filed the divorce by mutual consent. The Karnataka High Court vehemently expressed that the cooling period of six months in the said Section is a mere formality and that the Courts can grant a divorce before the completion of six months if the divorce has been filed through mutual consent. In this case, the Karnataka High Court had waived off the cooling period since the parties had been living separately for more than a year and the divorce was filed by mutual consent.
- Kovelamudi Kanika Dhillon v. Kovelamudi Surya Prakash Rao[12]: Recently in the year 2020, this case seeking waiver of the cooling period mentioned under Section 13B(2) of the Hindu Marriage Act, 1955 was brought before the High Court of Bombay. In this case, the parties had been residing separately for more than two years which is a reasonable time period and the Petitioner, i.e, the wife had been carrying pregnancy from another person. It was observed that there was no scope of reconciliation as the Petitioner was already carrying pregnancy from another person and have expressed the intention of getting married to that person, the Court, keeping all the facts and circumstances of the case in mind and for the best interests of both parties waived off the cooling period of six months and granted divorce to the parties.
- S.V v. V.P.G[13]: In this case, the Delhi High Court altered the period of the statutory period stating “it is not mandatory but directive”[14] The Court had agreed to waive off the cooling period of six months since one of the parties had expressed the desire to get married to somebody else and that there was no chance of reconciliation between them.
Author’s Name: Riddhi Goyal (Amity University, Noida)
[1] https://indiankanoon.org/doc/1108159/
[2] (2017) 8 SCC 746
[3] Ibid 1.
[4] Ibid 1.
[5] Ibid 2.
[6] Ibid 2.
[7] (2018) 14 SCC 638
[8] Ibid 2.
[9] Ibid 4.
[10] (1990) SCC OnLine Del 18
[11] https://indiankanoon.org/doc/322767/
[12] (2020) SCC OnLine Bom 2054
[13] (2019) SCC OnLine Del 8391
[14] Ibid 11.
