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The Marriage Under Hindu Law

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Marriage under Hindu law is considered as a union of two hearts and families. The success of marriage depends on mutual understanding, trust, love and affection. However, there are certain circumstances which do not lead to the desired fate of a matrimonial relationship due to paucity of trust and faith. If such unavoidable matter arises the only option left with the husband and wife is Divorce.

Divorce is the legal dissolution of marriage. The divorce procedure in India is lengthy and complex. However, in case husband and wife seeks divorce by mutual consent, the time and money spent is reduced in comparison to the contested divorce. Divorce with mutual consent is governed under Section 13B (2) of Hindu Marriage Act. This section was first introduced by means of Marriage Laws (Amendment) Act of 1976 and the purpose of this section is to give speedy relief to the parties. This section permits the dissolution of marriage by mutual consent provided that that the parties i.e. husband and wife, have:

  • been living separately after their marriage for a period of one year or more;
  • not been able to live together anymore; and
  • mutually agreed that the marriage should be dissolved.

Mutual divorce petition is filed by both husband and wife (“Parties”) before the family court. Parties present their petition before the court which is also known as First Motion for Mutual Divorce. On first motion, Court records the statement of the Parties and fix the matter after a period of six months. This six-month time period is usually known as cooling period. This period was laid down by the Legislature so that the Parties can re-think about the decision and save their marriage. The parties must be present in the court after six months for making a second motion after which a decree of divorce is granted by the court.

However, it has been held in various cases by Hon’ble Supreme Court and High Courts that such cooling period is not compulsory to be observed, and if the situation demands, the marriage must be dissolved even before the expiry of the six month period. The above-mentioned view was recently discussed in Amardeep Singh v. Harveen Kaur , where the question of law was: Whether the six-months cooling period can be waived off by the courts?

A bench comprising of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit held that “the period mentioned in Section 13B (2) is not mandatory but directory.” The Hon’ble court stated that the six-month cooling period can be waived off by the courts in cases of divorce by mutual consent, if the concerned court is of the opinion that:

  • the six month statutory period specified in Section 13B (2) in addition to the statutory period of one year is already over before the first motion itself;
  • all efforts to unite the parties have failed and they will not be able to live together anymore;
  • the parties have settled their differences including alimony, custody of child etc.; and
  • waiting period will only prolong their agony.

The Hon’ble court further stated that the parties who are seeking mutual divorce can file a waiver application after a week of filing the first motion. However, the decision of waiver of cooling period will be at the discretion of the concerned court after considering the above-mentioned conditions. The cooling period is provided so as to ensure that the Parties do not make any hasty decisions. There have been many cases where the marriages have been revived during the cooling period, however, that does not mean that in every matter Parties have to observe the cooling period.

The Supreme court in many judgments had stated that where the circumstances are such that continuing the ties of the marriage by applying Section 13-B, would only continue the agony of the parties, then the marriage must be dissolved, and divorce must be granted to the parties. Hon’ble Supreme Court in Amardeep Singh vs. Harveen Kaur had taken a historic step. However, this is not the first time when the Hon’ble Supreme Court had waived off the cooling period but this time the Supreme Court had given the authority to the family courts to waive off the cooling period. With this landmark judgment, Parties can now request the court to expedite the process and not to wait for another six months. Many family courts are waiving off the cooling period thereby providing speedy relief to the Parties.

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