Trivedi and Parashar (Advocates and Solicitors)
COOLING OFF PERIOD FOR MUTUAL CONSENT DIVORCE CAN BE WAIVED BY INVOKING ARTICLE 142 OF THE CONSTITUTION OF INDIA.
In Shilpa Sailesh v. Varun Sreenivasan [T.P (C) No. 1118 of 2014], the present appeal before the Supreme Court of India arose from the order dated 12.05.2010 passed in Neeti Malviya v. Rakesh Malviya [T.P (C) No. 899 of 2007]. As per section 13 (B) of the Hindi Marriage Act, 1955 (“Act”) the parties have to wait for a minimum of six months and a maximum of 18 months before moving to a second motion after filing the first motion seeking divorce through mutual consent. This period is known as the cooling-off period and it is mandated by the legislature to enable the parties to have an opportunity for introspection and reconsider the decision. However, this was creating hardship in many cases.
In the case of Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 746], the Supreme Court held that the cooling-off period is not mandatory as prescribed under the Act and can be waived off by the family court in exceptional cases. The court also mentioned certain factors to waive the cooling-off period-
A. “The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
B. All efforts for mediation/conciliation including efforts in terms of Order XXXII A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further effort;
C. The parties have genuinely settled their differences including alimony, custody of a child, or any other pending issues between the parties;
D. The waiting period will only prolong their agony.”
In addition, the court also added some factors through the case of Amit Kumar v. Suman Beniwal [(2021) SCC Online SC 1270] that the parties should have freely, on their accord, and without any coercion or pressure arrived at a genuine settlement.
Furthermore, the Supreme Court in many matrimonial appeals and transfer petitions invoked the powers under Article 142 of the Indian Constitution to waive off the cooling-off period, when parties entered into a mutual settlement agreement during the pendency of the proceedings. After observing the Supreme Court held in the present petition that "This Court, given settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in the exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings". The Supreme Court also made it clear that under Article 32 of the Constitution of India to seek relief of dissolution of marriage on the ground of irretrievable breakdown of marriage directly from it.