May 5, 2023

Supreme Court Can Dispense with ‘Cooling Period’ In Mutual Consent Divorce

Divorce is an emotionally and legally difficult experience. It takes on many forms, one of which is divorce by mutual consent, where the couple mutually agrees to dissolve the marriage without assigning blame to either spouse. This form of divorce is relatively easier to navigate and follows a shorter procedural span. However, in objective terms, this too can be a lengthy and  complicated process.

A recent Supreme Court judgement grappled with this issue under the current laws on divorce and introduced two significant changes. One, irretrievable breakdown of marriage is now recognised as a ground for divorce and second, couples seeking divorce under Hindu Law no longer need to undergo the mandatory 6 months “cooling period”. 

This week, let us explore the current laws on divorce in India and look into the details of this judgement and its implications.

Divorce under Hindu Law in India

In India, laws around marriage and divorce are governed largely by personal laws like Hindu Marriage Act,1955 (“HMA”), the Indian Christian Marriage Act, 1872 and the relevant Muslim laws. An exception to this is the Special Marriage Act, 1954 which applies to interfaith couples who have registered their marriage under this Act. In the current case, the Supreme Court was hearing several petitions related to divorce under the HMA. 

Let’s delve into divorce under Hindu Laws in some detail:

The HMA has substantially evolved over the years. Section 13 (1) and (2) of the HMA list down the grounds on which someone can seek divorce. These grounds can include:
i) adultery,
ii) cruelty,
iii) desertion, and
iv) one of the parties being of unsound mind.

This is known as the “fault theory”. 

In 1976, the HMA was amended to include “mutual consent” as a ground for divorce under Section 13B. Under this Section, parties can jointly file for a divorce before a competent court on the grounds that they have been:
i) living separately for over a year,
ii) are unable to live together, and
iii) they mutually agree that the marriage should be dissolved.

The parties must then file a second application before the court after at least 6 months but not later than 18 months from the date of the first application. This is known as the mandatory cooling period during which the couple is expected to either reconcile or reaffirm their intention to divorce. The courts typically finalise the decree of divorce only if the couple reaffirms their intention to divorce after the cooling period. 

While the introduction of section 13-B recognised a ground for divorce which did not impugn either of the parties, the cooling period mandated often proved to be cumbersome and acrimonious for the couple. The couple may find it hard to sustain the burden of the relationship for a mere legal requirement, at the cost of mental health, safety issues, disputes regarding custody and alimony. 

The Supreme Court took note of such nuances and pronounced the current judgement to remedy this, under the powers conferred upon it by the Indian Constitution under Article 142 (1). This Article empowers the Supreme Court to pass orders and decrees on any issues pending before it, if it feels it’s necessary to do so for the purpose of “complete justice”. 

What did the Supreme Court Say?

The Supreme Court acknowledged that while this provision is intended to enable couples to salvage a marriage, in many instances, it can stretch the misery of couples caught up in an already disintegrated marriage. 

In that light, the Court held that divorces can be granted on the basis of an “irretrievable breakdown of marriage” without apportioning blame. 

Invoking its powers under Article 142(1), the Court observed that it was in the best interest of the parties and alleviated the suffering that can come from the cooling period. The Court, however, said that such decrees can only be passed with discretion, after considering the following factors: 

  1. How long did the couple live together after marriage;
  2. How much time has passed since the couple stopped living together;
  3. The nature of allegations made by the parties against each other and their family members;
  4. The course of the ongoing legal proceedings including the orders passed so far and their impact on the relationships of the parties;
  5. Considering attempts of mediation and settlement of disputes;
  6. Whether the period of separation is sufficiently long, especially if more than 6 years have elapsed.

What are the other important facets to this Judgement? 

The Court also held that in case of applications under Section 13B of the HMA, the family court with the jurisdiction to hear a divorce case may consider waiving off the mandatory cooling period of 6 months in cases where the court is convinced that it is impossible to continue the marriage, after exercising due caution. 

Finally, the Court held that couples may not directly move the Supreme Court or any High Court under the provision of constitutional remedies guaranteed under Article 32 and Article 226 respectively of the Constitution without first approaching the relevant family court.