Can't wait anymore

In Hindu’s marriage is considered to be a Sacrament and not the contract. The husband and wife tie there knot before the sacred fire and take the blessings of elders to live their life together for many lifes to come.  But sometimes there arises a situation where in the husband and wife could not live together even for a single life. Therefore in order to get rid of the sacred relation the parties have to seek the help of the courts in filing the divorce petition. Since the legislature has provided ample of grounds for divorce, but the problem comes when the parties fail to prove even a single allegation as mentioned in the petition.

Section 13 of the Hindu Marriage Act, 1955 provides multiple grounds to seek the divorce, but the parties coming forward with all the genuine allegations fails to prove the same resulting into long lasting litigation, wasting courts time, spending so much money and wasting their life without any fruitful result. Since the acts committed in matrimonial offences are within the four walls they are not easy to be proved resulting in breaking the back bone of the parties.

Seeing the fate of the cases filed under section 13 of the Hindu Marriage Act, 1955, the legislature in the year 1976 have introduced Section13B of the Hindu Marriage Act, Amendment Act which provides for divorce on the ground of mutual consent i.e. the parties mutually agree to take the divorce by filing the common petition and make it easier for both of them. But again the problem started when the parties cannot wait for the minimum prescribed period of 6 to 18 months (which is called as cooling period) between the first and the second motion. Sometimes the parties are so fed up with the relation that they can’t wait for 6-18 months or they don’t need any cooling period and seek the waiving of that particular period.

For presenting the petition under section 13B the following essentials were required to be fulfilled. These are as follows:-

1. The parties must be living separately from one year immediately preceding the presentation of the petition. The expression living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

2. The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

3. The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.

Even after the coming of section 13B of the Hindu Marriage Act, 1976 Amendment Act the courts have started to face the difficulty when the parties are coming with an application to waive of the minimum cooling period and wish to present the second motion just after the first motion statement has been recorded. Then the Hon’ble Supreme Court in Ashok Hurra v Rupa Ashok, held that “in exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of irretrievable break-down of marriage is not available even to the High Court which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.”

Therefore, the courts have been inclined more towards waiving off this period if the circumstance of the case demands so and where there is no chance of reconciliation between the parties. Also, Supreme Court by way of its extraordinary powers as provided under Article 142 of the Indian Constitution can grant divorce without waiting for 6 months if it is satisfied that the marriage is irretrievably broken down. However, this power is restricted only to Supreme Court. There is still uncertainty whether High Courts and Family Courts have to mandatorily wait for a period of 6 months. But as it is evident from many cases where there is no possibility of reconciliation between the parties and the marriage has been broken down irretrievably, the courts should follow the spirit of law more than the formal requirements of the section.

Warm Regards

Kapil Chandna

Advocate (Supreme Court of India)

Email_id: Advocate.kapilc@gmail.com