Divorce by mutual consent: HC waives cooling-off period

‘Reconciliation unlikely as both parties have lived separately since October 2017’

The Delhi High Court has waived the cooling-off period for divorce by mutual consent of a woman, from her estranged husband, after she expressed her intention to enter into another marriage with a non-resident Indian who was in India for limited number of days.

Section 13B of the Hindu Marriage Act, 1955 mandates that in case of divorce by mutual consent, there has to be a composite period of 18 months of separation — one year provided in Section 13B (1) and six months in Section 13B (2).

The woman had approached the High Court after a family court here rejected her application for waiving the statutory period of six months under Section 13B(2) of the Hindu Marriage Act.

Justice Prateek Jalan noted that the safeguards contained in the statue, including the period of one year between the separation of the parties and the first motion and the period of six months between the first motion and the second motion, are intended to explore every avenue of reconciliation and avoid an impulsive decision to break a marriage.

The judge said that in the present case, however, there does not appear to be any likelihood of such reconciliation as the parties have lived separately since October 2017 and the composite period of 18 months expired on April 25, 2019.

The family court had relied on a 2017 Supreme Court judgment to hold that the statutory period of six months can be waived, only if the first motion itself has been filed after the expiry of 18 months from the date when the parties had started living separately.

However, the High Court rejected the family court’s reasoning saying, “A holistic reading of the [Supreme] Court’s judgment leads instead to the conclusion that purposeless marriage which has no chance of reunion ought not to be prolonged.”

The estranged couple had got married in July 2017 and started living separately from October 25, 2017. During the proceedings under the Domestic Violence Act, 2005, the parties settled their disputes through mediation. They approached the family court to dissolve the marriage and after completion of first motion, the parties filed an application for waiver of the statutory period of six months. The woman intended to remarry another person on May 2 but a day before, the family court rejected the plea for wavier of the statutory period of six months.

Quashing the family court’s verdict, the high court said, “The application filed by the parties herein for waiving of the period of six months under Section 13B (2) is allowed.”

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