This Article is written by Shruthi Reddy L (a 2nd- year student from Symbiosis Law School, Hyderabad pursuing a Bachelor of Business Administration and a Bachelor of Legislative Law (BBA LLB).)
Table of Contents
Marriage is considered as a sacrament under the Hindu Marriage Act, 1955 unlike under the Muslim Law where marriage is considered as a contract. Marriage is a relationship not only between two individuals but between the families involving the two. Marriage is seen as an institution for the procreation of children and is considered as a match that is made in heaven. This simply means how much prominence it is given by religious sources. But due to various reasons, the rate of divorce is increasing rapidly. Divorce is the annulment of marriage. After the divorce is given to the couple, they are no longer mandated by the law to stay together and they are no longer considered as husband and wife. Recently the Supreme Court has waived off the period of six months which is mandatory for obtaining a divorce if it is done with mutual consent that where both the couples agree to it. Waiting for a period of six months before finalising the divorce is done usually for the couple to reconsider the option of giving divorce to each other with the positivity to stay with each other or to work things out rather than the option being only separation. Waiting for six months was a provision according to the Hindu Marriage Act, 1955 and it was discretionary and not mandatory. From now on, the trial court can ignore this period and can grant a divorce if there is no chance of cohabitation between the couple.
Divorce by mutual consent : Section 13(b) of the Hindu Marriage Act,1955 –
There are certain grounds for obtaining a divorce one of them is divorce by mutual consent. Divorce by mutual consent is a legal process where both the husband and the wife apply for divorce before the court. Thus the petition is submitted before the court jointly by the couple.
Essentials of Divorce by Mutual Consent –
- Parties must be living separately – According to section 13(b), the couple must not be living together prior to a period of one year before filing for divorce. In the context of section 13(b), living separately doesn’t mean living separately physically in different places. It was held in Sureshta Devi v Om Prakash, the court made it clear living separately means though the couple might live under the same roof, it is not considered as living as husband and wife.
- Parties have not been able to live together – Even after making attempts to live together, if the couple sees divorce as the only option then it is considered that they could not have been able to live together. Similar situation arose in Pradeep Pant & Anr v. Govt. of NCT Delhi where the couple applied for divorce by mutual consent and they had a child where the custody was with the wife and the husband could visit the child. The parties tried to reconciliation but the only way was divorce which was agreed upon by the parties without undue influence.
- Parties must have agreed to resolve the marriage – There are few situations where the wife and husband try to resolve the situation during the waiting period of six months. The parties have total of eighteen months after the first motion is passed for passing of the second motion. If the parties fail to file within those eighteen months then it considered as both the parties withdrawing their mutual consent.
These are the essential conditions for granting a divorce according to the provisions of the Hindu Marriage Act, 1955. It is explained under section 13(b) of the Act.
Obtaining a Divorce through Mutual Consent –
There is a procedure for obtaining a divorce through mutual consent which is explained as follows –
- The first step involves filing a joint petition. The husband and the wife are supposed to sign the petition for divorce with a family court in the form of affidavit. But it is important for the couple to be living apart for a period of one year before filing the petition.
- After filing the petition the couple must appear in the court to make statement. If the court is pleased the second step is where the court passes the first motion. It is after the passing of this motion that the parties have to wait for period of six months in order to reconsider their option of divorcing each other which is according to the provisions of section 13B(2) of the Hindu Marriage Act,1955. If this period of six months is not waived then the time can extend to a period of eighteen months. In that case the couple can submit for a second motion. It is to be noted that the second motion can only be passed between six months to eighteen months but not after the lapse of the eighteenth month.
- The statements are recorded again and the final hearings are held in this stage. The divorce is issued if there are any issues related to child custody or alimony which are sorted by the couple mutually. At this stage the marriage is deemed to end and divorce is granted to the couple.
Waiver of the Six-month wait for divorce –
There has been a debate going on as to whether the waiting period of six months for divorce was mandatory or not. The Supreme Court in the case of Amardeep Singh v Harveen Kaur mentioned it was mandatory for the waiting period of six months for divorce. This was the requirement under section 13B(2) of the Hindu Marriage Act,1955. In this case, the couple even before filing for a divorce lived separately for a period of eight years, the court has held that the waiting period of six months is only a chance for reconsideration for the couple before giving divorce each other. The court explained that whether the six month waiting period is mandatory or not depends on each case and may not be the same for all the cases.
Subject to the following conditions, the court can waive the six month waiting period which was according to section 13B(2) –
- Before the filing of the divorce petition, a period of one year of the spouse living separately and then the six months has passed.
- Waiting for six months would probably only increase the pain for the couples who want to take divorce.
- The couple amicably has sorted the child custody and the alimony related differences if any in a legitimate manner.
- There is no possibility for the couples to live together despite mediation or reconciliation.
After satisfying the above conditions and after the passing of one week after the first motion is passed the application for waiving of six-month waiting can be submitted in the court.
The court has evolved with the decisions it gives along with the passage of time. It can be said so after considering the process of how a divorce is granted to a couple. Before the six month waiting period for giving divorce was seen as mandatory but later the court explained that it was not a mandatory and only directory in nature. It was with the various cases that the court has reached the conclusion that it is not mandatory for the couples to wait for six months, if they think they need to take divorce they can do so within a week after filing for a waiver of the six-month waiting period. The six-month waiting period was provided according to section 13B(2) and the intention behind it was to reduce the rate of divorces by giving the couple a chance to reconsider their options. But now the courts have proved to be flexible – if the only choice is to take divorce then the couple can do so without waiting for six months as the court has decided to waive it off and the couple need not face any agony and divorce will be granted.
 Sureshta Devi v Om Prakash AIR 1992 SC 1904
 Pradeep Pant & Anr v. Govt. of NCT Delhi 2012 SCC Online Del 2436
 Amardeep Singh v Harveen Kaur AIR 2017 SC 4417