Waiver of the Statutory period of Six months for Dissolution of Marriage

The concept of divorce by mutual consent was introduced by way of amendment in the year 1976. Section 13B (2) of the Hindu Marriage Act, 1955 (the Act) contains a bar to divorce being granted before six months elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

The waiting period as mentioned under Section 13(B) of the Act is advisory and can be waived by the court in exceptional circumstances where proceedings are pending. A petition filed under this clause is only maintainable if the parties have been living separately for a year or more and have agreed that the marriage must be dissolved because they are unable to live together.

When there is no hope of reconciliation and the parties have previously been separated for a longer amount of time or are contesting proceedings for a period longer than the term specified in Section 13B (2), the discretion to waive the period is guided by the interest of justice.

Whether the exercise of power under Article 142 of the Constitution to waive the statutory period under Section 13B of the Act is appropriate?

The Supreme Court in the case of Manish Goel v. Rohini Goel had held that the Court's jurisdiction surrounding Article 142 of the Constitution could not be utilised to waive the statutory term of six months for submitting the second motion under Section 13B of the Act, because doing so would be passing an order in violation of a statute. In general, no court can give a directive that is contradictory to the law, nor can a court order an authority to act in violation of the law. The purpose of the courts is to enforce the rule of law, not to issue orders or directions that are contradictory to the law.

The Supreme Court, under Article 142 of the Constitution, cannot ignore the substantive provisions of a statute and issue orders on a matter that can only be resolved through a system established by another statute. It is not to be used in cases where there is no legal foundation for constructing a superstructure.

It is a well-established notion that the Court's power under this Article has only been used in circumstances where the Supreme Court considered the marriage to be completely unworkable, emotionally dead, beyond repair, and irreversibly broken down. This power was also used to put an end to all lawsuits and save the parties from additional suffering.

The Supreme Court in the case of Amardeep Singh v. Harveen Kaur had the following parameters which a Court must consider while determining the same:        

• For how long the parties have been married?
• For how long the litigation has been pending?
• How long they have been staying apart?
• Are there any other proceedings between the parties?
• Have the parties attended mediation/conciliation?
• Have the parties arrived at a genuine settlement that takes care of alimony, custody of a child, or any other pending issues between the parties?
  
  

The Court must be satisfied that the parties have been living apart for longer than the statutory period, that all attempts at mediation and reconciliation have failed, that there is no hope of reunion, and that waiting any longer will simply prolong their suffering.

Criteria for waiving off the statutory period of 6 months for dissolution of marriage:

Where a court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B (2) of the Act, it can do so after considering the following:

• the statutory period of six months specified in Section 13B (2), in addition to the statutory period of one year under Section 13B (1) of separation of parties is already over before the first motion itself;
• all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
• the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties;
• the waiting period will only prolong their agony.
  
  

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. The relaxation of the waiting period for the second motion will be at the discretion of the concerned Court if the above conditions are met.

Do NRIs have the option of appearing for these proceedings through video conferencing:

To further the interests of justice, the Supreme Court had allowed video conferencing and legitimate representation of people by close relatives such as parents and siblings. Only if there is a legitimate and valid reason for a party's non-appearance can this be arranged. This is especially important for NRIs and persons who live far apart because it makes the process more comfortable and practical.

Conclusion:

It must be noted that the purpose of Section 13B was to allow the parties to dissolve a marriage by consent if it had irreversibly broken down and to allow them to rehabilitate the marriage using available options. The amendment was motivated by the belief that the forcible continuation of matrimony between unwilling couples served no purpose. The purpose of the cooling-off period was to prevent a hasty judgment if there was a chance that conflicts may be resolved otherwise. The goal was not to prolong a meaningless marriage or the suffering of the parties when there was no hope of reunion. Even while every effort should be made to save a marriage, if there are no hopes of reunion and new rehabilitation, the Court should not be helpless to provide the parties with a better option.