The Hindu Marriage Act, 1955 provide, divorce through mutual consent as per section 13-B of the act. This provision requires that parties live separately for a year before presenting a petition for divorce and that parties take a minimum six-month ‘cooling off’ period before the decree of divorce could be granted.
in Amardeep Singh v. Harveen Kaur, the Supreme Court held that this provision was directory and not mandatory. Therefore, courts may waive the statutory period after considering the following:
- Whether the cooling-off period has expired before the submission of the first motion;
- Whether all efforts for mediation/ conciliation have failed and there is no likelihood of such efforts succeeding;
- Whether the parties have settled all their differences, including alimony, child custody, etc;
- Whether the cooling-off period will only prolong their agony.
The Supreme Court also held that parties may file an application seeking such waiver a week after their first motion seeking a divorce.
While this judgment advanced the interests of parties, family courts interpreted this judgment to mean that the cooling-off period could be waived only if all 4 factors were fulfilled. Particularly, this meant that the family courts would refrain from waiving it unless a period of 18 months of separation had elapsed, thus defeating the purpose of the judgment in Amardeep Singh.
