Currently, under the Hindu Marriage Act, after a couple files for divorce claiming mutual consent, it has to wait for 18 months to actually get the divorce: 12 months of separation have to be established, followed by a six-month "cooling off" period that is meant to allow for reconciliation.
The Supreme Court bench of Justices AK Goel and UU Lalit observed that this cooling off period was introduced with a noble objective in mind, but it could not be made mandatory.
This means that Hindu married couples will not require to wait six months for separation orders if they part ways based on mutual consent.
The apex court said that this minimum period can be relaxed by the trial court in some cases owing to the certain situation after the estranged couple file a waiver application within a week of filing the first motion.
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The SC said in its judgement that although the stipulation about cooling off period is for the good of the couple, in cases where both of them realize that it has become impossible to live together, it observed that there is no meaning in courts forcing them to live together for six months. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any goal. "The period was laid down to enable the parties to have a rethink so that the court grants divorce only if there is no chance for reconciliation".
The Supreme Court said that Section 13B (2) was not mandatory but only directory in nature.
It included the statutory period of six months, in addition to the statutory period of one year of separation of parties is already over before the first motion itself, where all efforts for mediation to reunite have failed and where the parties have genuinely settled their differences, including alimony, custody of a child or any other pending issues. The apex court in its verdict explained its flexibility to accept close relations like parents or siblings, to appear in front of court when the main parties are unable to appear in front of the court for a valid reason.
"The object of the cooling off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled", the bench said adding every effort should be done to save a marriage.
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