Under the Hindu Marriage Act, 1955, couples wishing to divorce must first file a petition for divorce and then wait for 6 months of “cooling-off”. This is the wisdom woven into the law, that time is a great healer, and over time, saner counsel could prevail. However, in today’s fast-paced world, when the husband and the wife both are agreeable to the divorce and the terms of the divorce settlement, the parties in such cases often question the need for an additional cooling-off period besides the mandated separation, because they want to get on with their respective lives, and not wait for 6 more months.
In September 2017, the Supreme Court considered in the captioned case whether this 6-month cooling-off period could be waived.
The Supreme Court held that it had no discretionary power to override the Hindu Marriage Act's explicit provisions. It ruled, however, that s.13B of the Hindu Marriage Act requiring a six-month cooling-off period for all divorces is not mandatory, but merely a directory. Therefore, the Family Court before which divorce proceedings are pending may waive that period if certain conditions are fulfilled, including that the parties have been separated for more than 18 months, that all mediation and conciliation efforts to reunite the parties have failed, and that the parties have genuinely settled their differences, including alimony, child custody etc.
Thus, family courts now have the discretion to decide whether to waive the cooling-off period of six months in cases of divorce by mutual consent. The Supreme Court also held that the waiver request could be filed as early as one week after the request for divorce had been filed.
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