Till time do us part: The wedding was hardly over before Rahul Mahajan and his wife filed for divorce

I still believe we make marriage itself too easy and divorce too difficult. Marriage ought to be fairly difficult, impossible to contract in haste; and then with fewer mistakes having been made, divorce should be easy,” said English writer J.B. Priestley. He might have been ruminating on the adage marry in haste, repent at leisure which certainly seems to hold true of wedlocks that end up in Indian courts. Most Indian litigation tends to be a long drawn-out process. This is equally applicable to divorces that are bitterly contested which tend to drag on for years, sometimes decades.

However, even in the instance of a divorce by mutual consent, where both sides jointly agree to a no-contest divorce, the formal exit time is a minimum of 18 months from the time of separation, if one goes by Section 15-B of the Hindu Marriage Act that applies to consensual divorce.

According to this Section, which also applies to the Special Marriages Act, a petition for divorce by mutual consent may be filed in a district court after a statutory year of separation. The judge then files a statement on this, the first motion, after a few days. Thereafter, the petitioners file a second motion (within up to 18 months) which marks the beginning of a six-month waiting period to allow the couple to reconcile.

Both sides must be present in court at the time of petitioning the court and at the time of judgment. Divorce is granted if the couple fails to reconcile after the cooling period.

The reasons for divorce may vary but a noticeable trend has been divorce by mutual consent or no-contest divorce. Couples marry and realise that their life partner is more of a short journey traveller than one they want to wake up with for the rest of their lives. Sometimes even called no blame divorce, these cases are filed by petitioners who decide to part ways fairly amicably and without playing the blame game.

Says Gaurav Malhotra (name changed on request), who split with his wife three years ago after being married for a little over a year, “We were great friends for two years but we realised two months into our marriage that we had made the biggest blunder of our lives by marrying. We told the court that we had no accusations to level at each other, just that we wanted out amicably. After the six months we presented ourselves at court. The judge gave us a short lecture on Indian traditions and values and asked if we wanted to reconcile. We said no, and that was that. We were happily divorced.”

For those itching to cut their losses, the wait has potentially got shorter. According to recent practice in courts, the judges have discretionary power under Section 151 to spare further unhappiness in case of couples who are bent on divorcing, says Delhi-based Rajiv Gupta, an advocate in the Supreme Court. “There is a conciliation period of six months between the presentation of the first motion and the second motion but that period can be waived by the court and the court may grant the divorce within days,” informs Gupta.

Simply put, if there is no compromise between the couple, then the mandatory waiting period can be put aside. To ascertain that neither side has been pressed to file for divorce, both the parties have to sign an affidavit attested by a public notary and even the court asks the pair in court if their consent (under the Indian Contract Act) is free or forced.

Soumitra Chatterjee, who practices at the Supreme Court, elaborates further. “As per the prevailing laws, once the first motion is filed, there remains a gap of six months for the parties to reconcile, if possible and then they again appear before the court. However, these days, we move both the first and second motion together with an application to the court to waive off the period of six months. If the court allows that, the divorce decree is in the hands of the parties within a fortnight,” says Chatterjee.

Some, however, disagree on which cases these waivers may apply to. “Unless it’s an ongoing contested divorce case that is converted into a mutual consent case, there is no waiver of the six-month waiting period. This is not applicable to fresh cases,” maintains Suman Biradari, advocate, Majlis legal aid centre in Mumbai.

Not so, says Gupta. “Even if a fresh petition is present before the court, the waiver is done. I have a certified copy lying with me of a fresh petition where the district judge (where all divorce petitions are filed) gave a waiver.

A lawyer needs to file an application under Section 151 for invoking the inherent powers of the court for this waiver. Only in rare cases do the courts decline the application under Section 151 — if they find the consent is not free or there was misrepresentation of a possibility of reconciliation.

He goes on to explain that since district courts are not a court of record like the high courts and the Supreme Court are, there is no precedent in this case but is a matter of practice. Even family courts are bound by civil procedure code and the Hindu Marriage Act, he adds.

Why then is there a lack of awareness of such a practice where one can petition the court to waive the six-month period in a mutual consent case? “Most lawyers are aware of it,” insists Gupta.

In 1969, the then governor of California Ronald Reagan, signed the first “no-fault” divorce law that allowed couples to divorce without having to prove the other guilty of adultery, abuse or other spousal misbehaviour. Within five years, 20 states in the US had passed similar laws. Now, throughout the country, couples frequently opt for no-blame divorces as they are also known, mainly to avoid acrimony and unhappiness for families.

“The court is of the view that when the parties have lived apart for a year, there is no point making them wait for another six months. This waiver is more likely to be granted, moreover, when there is money involved, like payment to be made to the girl. The boy’s side pays half the money on the first motion and even the girl wants to get rid of the problem and take the remaining amount faster. Once the money towards divorce is paid, even courts are liberal,” says Gupta.

A differing opinion comes from another family court lawyer. According to Siddharth Shah, “A six-month notice period in a mutual consent divorce case is a statutory compliance that has to be followed. The courts may do verification through the parties before passing an order”

What remains of note is that the process of getting unhitched for those pairs who want to undo time has actually become shorter. It’s a technical point that can bring some exit cheer.