The Supreme Court in the case of Amardeep Singh vs. Harveen Kaur (2017) 8 SCC 746 held that the object of Section 13-B of the Hindu Marriage Act, 1955 (Divorce by mutual consent) 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 relevant discussion is in paragraphs 17 and 19, which reads as under:
“ 17. The object of the provision 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 amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off period was to safeguard against a hurried decision if there was otherwise 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.”
“19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:
(i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself;
(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-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 efforts;
(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
(iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.”
Thus, as observed by the Supreme Court the object of the cooling- off period is to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The Supreme Page Court in paragraph No.19 has given guidelines for consideration of waiver application.
- A learned Single Judge of the Bombay High Court in the decision in the matter between Sneha Akshay Garg vs. Nil 2024 SCC OnLine Bom 2513 has explained the decision of the Supreme Court in Amardeep Singh (supra) as follows:
“ 8. The guiding principles in the Supreme Court’s decision in the case of Amardeep Singh need to be correctly understood and applied to achieve the object of the provision of Section 13-B of the said Act. The Hon’ble Supreme Court has observed that the object of the waiting period was to provide a safeguard against a hurried decision, if there was otherwise a possibility of reconciliation. Thus, the waiting period is a precautionary provision to avoid any injustice to any party and rule out the possibility of reconciliation. Thus, the purpose of the waiting period needs to be correctly understood while deciding the application for a waiver. Seeing the rapid changes in an evolving society, the judiciary would play a vital role in assisting the parties seeking the dissolution of their marriage by mutual consent. Thus, keeping in mind the changing social conditions, a realistic approach needs to be adopted.”
“9. Normally, we come across cases where parties continue to fight, though there is no possibility of reconciliation. In such cases, the parties are encouraged to explore the possibility of an amicable settlement and are even referred for mediation so that they can put an end to the litigation. However, when the parties apply for divorce by mutual consent, they have taken a conscious decision to separate and thus have shown a reasonable approach. Such a decision shows that they have decided to move ahead, and thus, there is every chance of rehabilitation. The newly married couple not being able to reside together, or a couple married for quite some time is unable to continue to stay together for various reasons, itself would be a mental agony. Thus, once the Court is satisfied that the parties have taken a conscious decision to separate and move ahead and that there is no possibility of reconciliation, the Court should adopt a realistic approach and exercise the discretion to waive the waiting period. Hence, it is the duty of the Court to assist the parties by exercising the discretion to waive the cooling off period and free them from the stress of their application for divorce remaining pending.” (Emphasis added)