The Telegraph
Wednesday , September 13 , 2017
 
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Hindu divorce wait cut

New Delhi, Sept. 12: The Supreme Court today ruled that courts could grant divorce to estranged couples even before the statutory six-month cooling-off period fixed under the 1955 Hindu Marriage Act, provided they had lived apart for a year or more before filing their divorce petitions.

The ruling is expected to make it easier for estranged Hindu couples seeking divorce by mutual consent to speed up their judicial separation.

Hindu couples can now obtain divorce only after the waiting period of six months after filing for divorce, according to the 1955 law's Section 13B(2) that had been incorporated for giving estranged couples a chance to come together again. The cooling-off period starts one year after they have started living separately.

The bench said it would be "open" to the courts concerned to exercise their "discretion" in cases where there was no possibility of couples "resuming cohabitation".

"Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation," the bench of Justices A.K. Goel and U.U. Lalit said.

The bench said courts should consider whether all efforts at "mediation/conciliation" had failed; the parties had genuinely settled their differences, including alimony, custody of child or any other pending issues; and that the waiting period would only prolong their agony.

"Needless to say that in conducting such proceedings the court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice," the bench said in its judgment.

The top court was dealing with a dispute between of a couple - Amardeep Singh and Harveen Kaur - who had sought waiver of the cooling-off period on the ground that their differences were irreconcilable and they had been living separately for more than eight years.

The couple had got married in January 1994 and had two children, one born in 1995 and the other in 2003. But they have been living separately since 2008.

Their dispute led to civil and criminal proceedings. Finally, in April 2017, a settlement was arrived at, including a permanent alimony of Rs 2.75 crore for the wife.

Allowing the couple's plea, Justice Goel, writing the judgment, said the court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation had failed.

"The object of the provision (Section 13B) is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options.

"Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation," the bench of Justices A.K. Goel and U.U. Lalit said.

The bench said courts should consider whether all efforts at "mediation/conciliation" had failed; the parties had genuinely settled their differences, including alimony, custody of child or any other pending issues; and that the waiting period would only prolong their agony.

"Needless to say that in conducting such proceedings the court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice," the bench said in its judgment.

The top court was dealing with a dispute between of a couple - Amardeep Singh and Harveen Kaur - who had sought waiver of the cooling-off period on the ground that their differences were irreconcilable and they had been living separately for more than eight years.

The couple had got married in January 1994 and had two children, one born in 1995 and the other in 2003. But they have been living separately since 2008.

Their dispute led to civil and criminal proceedings. Finally, in April 2017, a settlement was arrived at, including a permanent alimony of Rs 2.75 crore for the wife.

Allowing the couple's plea, Justice Goel, writing the judgment, said the court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation had failed.

"The object of the provision (Section 13B) is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options.

"The object of the cooling-off period was to safeguard against a hurried decision if there was otherwise (a) possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation.

"Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option...," Justice Goel said.


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