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  2. MUTUAL CONSENT DIVORCE AND WAIVER OF COOLING OFF PERIOD

As per section 13-B (2) of the Hindu Marriage Act, parties are required to wait for 6 months after the date of presentation of the first motion and not later than 18 months after the said date and this interregnum period from 6 to 18 months is intended to give an opportunity to the parties to rethink on their decision or as an opportunity to the parties to reflect on their move.

If any of the party in this interregnum period withdraws his consent, then the Court cannot pass divorce decree as laid down in the case of Sureshta Devi v. Om Prakash reported in (1991) 2SCC 25. The aforesaid view has been reiterated by the Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar and the object of the cooling-off period is to safeguard both the parties against a hurried decision if there is otherwise a possibility of their differences being reconciled. But, this cooling-off period of 6 months in some cases is practically not helpful and waiver of it, is really helpful for both the parties. It is worth noting that Hon’ble Apex Court in the case of Anilkumar Jain Vs. Maya Jain reported in (2009) 10SCC 415 held that this period cannot be waived off by the parties or by any Civil Court or Hon’ble High Court.

However, latter on the question arose whether provision for cooling period is mandatory or directory in Amardeepsingh Vs. Harveenkaur reported in (2017) 8SCC 746, wherein the Hon’ble Apex Court held that this provision is directory and further held that where a court is satisfied that a case for waiver of the statutory “cooling period” under Section 13-B(2) of the Act is made out, it may waive the said period in certain circumstances. The relevant paras are quoted below from the above judgement of the Apex Court:

17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 18. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. 19. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the First Motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXII-A 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;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) 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. If the above conditions are satisfied, the waiver of the waiting period for the Second Motion will be in the discretion of the Court concerned.

20. Since we are of the view that the period mentioned in Section 13-B is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

Even the appearance via video conferencing or through close relative is also permitted by the Hon’ble Apex Court in the above judgment.

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