In a recent case, while granting divorce through mutual consent, the Supreme Court has emphasised that a judgment is not to be read in the manner of a statute and construed with pedantic rigidity. The Supreme Court thus correctly sets a good precedent in giving more autonomy to individuals in private matters of marriage and reduces the control of the state in the affairs of citizens, write ABHINAV HANSARAMAN and SHIVANGI SHARMA.
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HINDU law understands marriage as an indissoluble sacrament. However, with the codification of the law on Hindu marriages, dissolution was provided for if certain matrimonial offences, such as adultery, cruelty, and desertion were committed. Till 1976, parties could not obtain decrees of divorce if such offences had not been committed, even if both parties wanted to part ways.
In 1976, the Hindu Marriage Act, 1955 was amended to provide for divorce through mutual consent (Section 13B). 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.
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As the approach in matrimonial cases goes, courts consistently try to reconcile any differences between the parties and attempt to preserve the institution of marriage. The Supreme Court, in Sureshta Devi v. Om Prakash explained that the intention of the cooling off period was to enable parties to reflect on their decision and attempt to resolve their differences. However, this cooling off period often contradicts the free will of the parties.
Courts function on an assumption that all differences are resolvable, even if the parties themselves are not of such opinion. Given the financial, social, and cultural burden that approaching courts impose on parties, parties are often sure of their decision to part ways before presenting their petition for divorce. In many instances, even when both parties explicitly state that there is no scope of reconciling their differences, they are subject to the unnecessary burden of enduring the cooling-off period, unable to carry on with their lives. In such instances, there is a clear conflict between individual interests and public policy.
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The Supreme Court has come to the aid of parties in such instances. For example, in Naveen Kohli v. Neelu Kohli, it noted that where both parties moved the court together to break a ‘substance-less’ marriage, the cooling off period was unnecessary and an extraneous practice.
Contrarily, in Manish Goel v. Rohini Goel, the Supreme Court held that it could not invoke its powers under Article 142 of the Constitution to waive the cooling-off period, as it would be contrary to statutory provisions.
Finally, 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:
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Whether the cooling-off period has expired before the submission of the first motion;
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Whether all efforts for mediation/ conciliation have failed and there is no likelihood of such efforts succeeding;
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Whether the parties have settled all their differences, including alimony, child custody, etc;
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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.
The Supreme Court, in Sureshta Devi v. Om Prakash explained that the intention of the cooling off period was to enable parties to reflect on their decision and attempt to resolve their differences. However, this cooling off period often contradicts with the free-will of the parties.
The chicken came home to roost in Amit Kumar v. Suman Beniwal. In this case, the married couple were civil servants who separated three days after their marriage, due to irreconcilable differences. Subsequently, after a year of separation, they approached the family court under Section 13B seeking a decree of divorce by mutual consent. They also sought a waiver of the cooling-off period. The family court dismissed the same on the grounds the parties had not been separated for 18 months or more and the same was affirmed by the High Court.
In many instances, even when both parties explicitly state that there is no scope of reconciling their differences, they are subject to the unnecessary burden of enduring the cooling-off period, unable to carry on with their lives. In such instances, there is a clear conflict between individual interest and public policy.
However, the Supreme Court allowed the appeal of the parties, holding that the conditions for waiving in Amardeep Singh were illustrative and not exhaustive. It observed that the subordinate courts misconstrued the judgment in Amardeep Singh (supra) and proceeded on the basis that the conditions specified therein are mandatory and that the statutory waiting period of six months under Section 13B (2) can only be waived if all the conditions mentioned therein are fulfilled, including, in particular, the condition of separation of at least one and half year before making the motion for a decree of divorce.
It noted that “It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity.”
Following which, it provided for the exercise of discretion to waive the statutory waiting period of six months, jotting down the following factors to be considered:
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how long the parties were married;
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how long they had stayed together;
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how long they had stayed apart;
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how long their litigation had been pending;
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existence of other proceedings between the parties;
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possibility of reconciliation;
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whether they had any children;
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whether the parties had freely arrived at a settlement in relation to alimony, maintenance, child custody.
The facts of the present case do not fulfill the first condition provided in Amardeep Singh, that a period of one and half years before the filing of the first motion is already over. It observes that both the parties have been married for about 15 months but have lived together only for 3 days and separated on account of irreconcilable differences.
The peculiar facts of the case have given rise to more practical factors that are to be considered for waiving of the cooling-off period and has opened a larger more flexible window to do away with the waiting period when both the parties have made a sound decision of separating amicably.
The peculiar facts of the case have given rise to more practical factors that are to be considered for waiving of the cooling-off period and have opened a larger and more flexible window to do away with the waiting period when both the parties have made a sound decision of separating amicably. This judgment sets a good precedent in giving more autonomy to individuals in private matters of marriage and reduces the control of the state in the affairs of citizens.
[Abhinav works with a law firm in Bombay and tweets @hansaraman. Shivangi Sharma is a practicing lawyer in the state of Madhya Pradesh and is a legal associate at Choudhary Law Associates, Bhopal. Shivangi tweets @shivangis23. The views expressed are personal.]
