Mutual consent, 6-month cooling-off period not mandatory for divorce: SC

Pronouncing a path breaking judgement on Tuesday, Supreme Court has relaxed the procedure of granting divorce on the ground of mutual consent.

A bench of justice Adesh Kumar Goyal and U.U. Lalit in its order said that "we are in the view that period of mentioned in section 13B (2) of Hindu Marriage Act is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case".

Section 13B (2) of Hindu Marriage Act says, "On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

The Supreme Court passed this judgement while hearing a case in which marriage between the parties took place on 16th January, 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings.

Finally, on April 28, 2017 a settlement was arrived at to resolve all the disputes and was decided to file divorce by mutual consent.

The respondent wife is to be given permanent alimony of Rs.2.75 crore.

Accordingly, an application was moved before Tis Hazari Court, New Delhi on May 8, 2017 and statements of the parties were recorded. The appellant husband has also handed over two cheques of Rs. 50, 00,000/-, which have been duly honoured, towards part payment of permanent alimony.

Custody of the children is to be with the appellant. They have sought waiver of the period of six months for the second motion on the ground that they have been living separately for the last more than eight years and there is no possibility of their reunion. Any delay will affect the chances of their resettlement. The parties have moved Supreme Court on the ground that it can only relax the six months period.