As Per The Hindu Law, Marriage Is A Sacrament. However, With Codification Of Law On The Matter Of Hindu Marriages, Dissolution Of Marriage Was Accepted In Cases Where Certain Offences Were Committed In The Marriage Such As Cruelty, Adultery, Desertion,Etc. Until 1976, Parties Were Not Able To Apply For Divorce, In Case One Of These Offences Were Not Committed In The Relationship.
The Hindu Marriage Act, 1955 Was Amended In 1976 To Add The Provision Of Divorce By Mutual Consent Under Section 13b. As Per The Provision Of The Act, It Was Conditioned That The Parties Live Separately For A Period Of One Year Before The Petition For Divorce Is Filed, After Which A Cooling Off Period Of Six Months Shall Be Given To Parties To Sort Out Their Issues, Failing Which A Divorce Decree Will Be Issued By The Court.
The Courts Generally Function On The Assumption That All Differences Can Be Resolved, Even In Case The Parties Are Not In The Favour Of Resolving Their Issues. As The Parties Are Already Facing The Financial, Social And Psychological Burden Even Before Filing The Court Case For Divorce, It Can Be Understood That They Are Sure About Their Decision To Divorce. In Such A Situation, To Force Parties To Go Through An Unnecessary Burden Of Cooling Off Period Will Ultimately Result In Them Being Unable To Continue With Their Lives. It Could Be Understood As A Clear Conflict Between The Individual Interests And Public Policy.
Judiciary’s View On The Matter-
In The Case Of Naveen Kohli V Neelu Kohli, It Was Held By The Supreme Court That Cooling Off Period Was Unnecessary And An Extraneous Practice As Both The Parties Filed The Application For Divorce To Break A ‘substance-Less’ Marriage.
However, In The Judgement Provided By The Court In The Case Of Manish Goel V Rohini Goel, The Supreme Court Decided That It Could Not Revoke Its Powers Provided Under Article 142 Of The Constitution To Waive The Cooling-Off Period, As It Would Be In Contravention To The The Statutory Provisions.
In The Amardeep Singh V Harveen Kaur Case, The Supreme Court Finally Decided That The Provision For Cooling Off Is Not Mandatory But Directory. Therefore, The Court May Waive The Cooling Off Period Of 6 Months After Considering The Following-
If The Cooling Off Period Has Expired Before The First Motion Was Passed.
If All The Efforts For The Mediation/Conciliation Have Failed And There Is No Probability Of Reconciliation
If The Parties Have Settled All Their Differences, Such As Alimonies, Maintenance, Custody,Etc.
In Case The Cooling Off Period Would Only Prolong Their Agony.
The Supreme Court Also Observed That The Parties Can File F The Waiver Of Cooling Off Period A Week After Their First Motion Seeking Divorce.
After This Judgement Was Passed, The Trial Courts Believed That The Cooling Off Period Can Be Waived Only If The Conditions Mentioned Above Are Fulfilled. Hence, The Family Court Would Not Waive Off The Cooling Off Period Unless A Period Of 18 Months Of Separation Has Not Passed, Thereby Defeating The Purpose Of The Judgement Of The Supreme Court In The Amardeep Singh Case.
In The Case Of Sushila Devi V Om Prakash, The Supreme Court Explained That The Intention Of The Cooling Off Period Was To Sort Out Their Issues And Resolve Them. However, Forcing This Cooling-Off Period Often Contradicts With The Free Will Of The Parties.
The Supreme Court Later Allowed For The Use Of Discretion To Waive The Mandatory Six-Month Waiting Period In A Ruling, Noting The Following Factors:
How Long The Couple Was Married.
How Long The Couple Stayed Together.
How Long The Couple Stayed Apart
How Long The Litigation Was Pending
Existence Of Other Proceedings Between The Parties.
Any Possibility Of Reconciliation
If The Parties Have Children
If The Parties Have Freely Decided The Settlement Issues Such As Maintenance, Custody Of The Children,Etc.
Conclusion
It Could Be Inferred From The Above Discussion That The Cooling Off Period As Provided By The Law Could Be Waived Off If The Above Mentioned Factors Have Been Met With. For Further Information, It Is Advised That You Contact Experienced divorce lawyers in gurgaon Or divorce lawyers in Ghaziabad, So As To Have A Better Understanding Of The Legal Procedure Involved With The Divorce Law.
Lead India Offers You A Team Of Experienced divorce lawyers in Faridabad Who Have Been Successfully Handling Cases Related To Criminal Law Or Civil Law And Could Offer You free legal advice. In Case You Wish To ask a question Or Any Other Advice, You May Contact Us.
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