Introduction
In a judgement pronounced in 2017, the Hon’ble Supreme Court of India addressed a crucial question regarding the minimum period for obtaining a divorce by mutual consent under the Hindu Marriage Act, 1955. The court examined whether the mandatory six-month waiting period prescribed under Section 13B(2) of the Act can be relaxed in exceptional circumstances. This landmark judgement, which arose from Civil Appeal No. 11158 of 2017, provides important insights into the interpretation and application of the law in cases of divorce by mutual consent.
Background
The case involved a couple, Amardeep Singh and Harveen Kaur, who had been living separately since 2008. After reaching a settlement to resolve their disputes, the couple filed a petition seeking divorce by mutual consent. They requested the waiver of the six-month waiting period for the second motion, citing the extended period of separation and the unlikelihood of reconciliation. The appellant also argued that previous court decisions had allowed for the relaxation of the statutory period.
Conflicting Decisions
The Supreme Court noted that there were conflicting decisions on whether the court could exercise its power under Article 142 of the Constitution to waive the mandatory waiting period specified in Section 13B(2) of the Act. In the case of Manish Goel versus Rohini Goel, a two-judge bench held that such power should not be used to contravene a statutory provision. The court emphasized that it should not pass orders or directions contrary to the law. However, subsequent decisions had exercised this power in cases where the marriage was deemed irretrievably broken.
Article 142 and the Earlier View
The Court first noted that, following Manish Goel v. Rohini Goel, its power under Article 142 of the Constitution should not be used to pass orders contrary to a statutory provision, in the absence of a contrary view by a larger bench. Rather than rely on Article 142, the Court therefore examined the nature of Section 13B(2) itself: is the six-month period mandatory, or directory?
Examining Section 13B(2)
The Supreme Court highlighted that the question of whether Section 13B(2) is mandatory or discretionary had not been addressed in the earlier Manish Goel judgement. The court appointed an amicus curiae to assist in examining this issue. The amicus curiae argued that the waiting period was directory and could be waived in exceptional situations, provided there was no chance of reconciliation and the parties had already been separated for a significant period.
The Court's Holding: When the Waiting Period Can Be Waived
The Supreme Court held that the six-month period in Section 13B(2) is not mandatory but directory. Its object is to give the parties time to reconsider, not to prolong a marriage that has clearly ended. The court hearing the case may therefore waive the period where it is satisfied that:
- the statutory period of six months under Section 13B(2), in addition to the statutory period of one year of separation under Section 13B(1), is already over before the first motion itself;
- all efforts at mediation or conciliation to reunite the parties, including under Order XXXIIA Rule 3 CPC, Section 23(2) of the Hindu Marriage Act and Section 9 of the Family Courts Act, have failed and there is no likelihood of success;
- the parties have genuinely settled their differences, including alimony, custody of children and any other pending issues; and
- the waiting period would only prolong their agony.
The Court added that a waiver application can be filed one week after the first motion, giving reasons for the request. If these conditions are met, granting the waiver remains in the discretion of the court concerned. The Court also observed that, where a party cannot appear in person, the court may use video conferencing and permit representation through close relations such as parents or siblings.
Conclusion
Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, decided on 12 September 2017, is the leading judgment on the six-month cooling-off period in mutual consent divorce. The Supreme Court held that the period under Section 13B(2) of the Hindu Marriage Act is directory, not mandatory, and that the court hearing the case may waive it when the conditions above are met.
Waiver is not automatic. Even where the conditions are satisfied, it remains in the court’s discretion, and each application is decided on its own facts. Couples considering a waiver should have their separation dates, mediation history and settlement terms reviewed by an advocate before applying.
