Supreme Court waives cooling-off period to grant divorce

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The Supreme Court has passed an order on 2nd October, 2018 that the cooling-off period to grant divorce between the first and second motion could be waived off depending on the circumstances of the case.

ByApprentice News Bulletin
October 4, 2018

The Supreme Court while dealing with a divorce by mutual consent under Section 13B of Hindu Marriage Act, 1955 (‘the Act’), passed an order to waive the cooling-off period to grant divorce when the parties have mutually consented to separate on friendly terms. The order was passed as a part of the transfer petition from Family Court in Dwaraka in the case of Akansha v. Anupam Mathur, Transfer Petition (Civil) no. 747/2018. The court observed that both the parties werewell educated individuals who were a conscious decision to obtain a divorce.

As per Section 23(2) the Act, once petition for divorce by mutual consent is filed, parties statement is recorded which is commonly referred to as the grant of ‘first motion’, parties are then asked to wait for six months period, called the ‘cooling off period’ for a chance for reconciliation before moving petition for ‘second motion’, i.e. if parties have been unable to resolve their differences, statement of parties would be recorded again. After this, the Court passes an order dissolving the marriage by granting a decree of divorce and thereby marriage stands dissolved.

However, the Supreme Court held that, “Having regard to the background of the litigations between the parties, we are convinced that there is no point in requiring the parties to wait for another six months. Accordingly, the period between first motion and the second motion is waived.”

Takeaways:

Cooling off period of 6 months in divorce matters may be waived off only in special circumstances.
The background of the litigants and facts of the matter will be the deciding factor. If the court is convinced that no hasty decision has been taken by the couple and the grant of cooling period will cause more harm, cooling period may be waived.
This is not the first time cooling period has been waived. There has been a slew of cases, the most recent one passed last month in the case of Amardeep Singh v. Hardeep Kaur, Civil Appeal no. 11158/2017, where the Supreme Court held that cooling off period under Section 13B is directory and not mandatory.