Welcome waiver of waiting period in divorce cases

Divorces under the Hindu Marriage Act and the Special Marriage Act are generally granted on fault grounds of cruelty, adultery, desertion, etc. One spouse files a petition for divorce on any fault ground.

In this, the party will have to also state that there is no collusion between the spouses in filing the said petition and that the party filing the case ought not to have condoned the fault committed by the other spouse.

In order to avoid mudslinging and washing dirty linen in public, there are instances when both spouses opt to divorce mutually.

This is called divorce by mutual consent, a remedy given since 1976. The pre-condition for such a divorce is that spouses ought to have lived separately at least for one year prior to the date of filing of the case. Once the case is filed, it is taken up after a waiting period of six months and if the parties still insist on divorce, the court grants the same.

Waiving the six months’ waiting period was allowed earlier, when there was a case pending between the parties for more than six months. But the Supreme Court had later said that the statutory period could be waived only by itself, exercising its extraordinary jurisdiction, and that a family court or even a high court cannot do so. This led to immense stress for those who had already suffered long separation and the prolonged litigation.

It is in this context that the Supreme Court has, in a recent judgment of Amardeep Singh Vs. Harveen Kaur, considering the plight of the spouses who are separated for a long period and arrived at a mutually agreeable terms of parting, waived the six months waiting period to grant divorce.

The parties in this case have been separated since 2008. They decided to resolve all issues, with the husband agreeing to pay a permanent alimony of Rs.2.75 crore to the wife and the later agreeing to withdraw the pending criminal cases, etc.

In view of the long separation and their mutual terms of settlement, the Supreme Court waived the six months waiting period and granted divorce by mutual consent.

The judgment in this case is not to be an exception, but to be made a precedent for all cases.

“The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.” Thus, under these extraordinary circumstances, even the family court is given the power to waive the mandatory period of six months and grant divorce by mutual consent. Taking cognisance of the present day inconvenience of the parties to be present in person before the trial courts, the Supreme Court further added, “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.”