HINDU LAW: DIVORCE BY MUTUAL CONSENT & EMERGING PRINCIPLES

 

HINDU LAW: DIVORCE BY MUTUAL CONSENT & EMERGING PRINCIPLES

                                           ANIL K KHAWARE

                                           ADVOCATE

Hindu Marriage is considered as sacramental Union. Earlier, there was hardly any codified mechanism to married couples to separate. Then, Hindu Marriage Act 1955 ( In short “HMA” or “HMA 1955”) was enacted as a comprehensive body of law dealing with the aspects of marriage and other matrimonial issues amongst Hindus, such as solemnization of marriage, prohibitions, regulations as well as divorce. Still, the law has undergone changes, since then and whereas, inter alia divorce is permitted on the premise of cruelty, desertion and change in religious faith as contained under Section 13 (1)(i) (ia) (ib) & (ii) of HMA 1955. Then, in 1976, the HMA was amended vide Amendment Act 1976, w.e.f 27.05.1976, adultery and incurable unsoundness of mind were also added as ground. It is also of paramount importance that Section 13 A and Section 13-B were inserted in the HMA w.e.f 27.05.1976. The present article, though, shall remain within the broad contour of Section 13 B i.e provision envisaging divorce with mutual consent. We know that conventional and contested divorce proceedings entail time and its offshoot is prolonged agony to the couples. The, section 13 B was inserted in the HMA 1955 to enable married couple to invoke it, should, by mutual consent, separation is sought for, by both the couple. The pre-requisites could be worked out by such couple to fast track the matter i.e divorce by mutual consent.

Before going further, it will be apt to reproduce section 13 B of HMA 1955:     

Divorce by Mutual Consent -(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made, not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

 

From the bare perusal of above, it is manifest that the object of the statute is to accord adequate time to the couple for any probable re-think or to see if there is probability of reunion and therefore, 18 months separation is envisaged i.e 12 months separation, before filing mutual divorce plea and Six (6) months, thereafter, in two intervening motions before a court of competent jurisdiction. The matrimonial cases impact the very foundation of a family and hence, the cherished object is to save a family or marriage, but, at the same time, in the context of the modern world, if there is irretrievable or perceived breakdown of marriage, and temperamentally, it is not feasible for the couple to live together, then, outlet to come out of the morass is also carved out and 13 B of HMA is one such mechanism. 

Under Section 13 B(1). A divorce petition therefore could be moved by a couple following a judicial separation of one year before a District Court of competent jurisdiction.

The fulcrum of section 13 (B) of HMA is to live separately for a period of at least one preceding year before preferring the petition for seeking dissolution of marriage and both the parties are on the same page as regards seeking dissolution of marriage. The term “living separately” has no magical charm and the context of it is aptly illustrated by hon’ble Supreme Court in a matter captioned as Sureshta Devi v Om Prakash (1992) AIR SC 1904. It is not material, if the parties lived under the common roof. It is suffice, that both of them are not living as husband and wife and no matrimonial obligations knits them together and they do not intend to live like husband and wife. The trap of the section shall thus be met, if the animus and action of living separately is evident. The crux of the matter is that the parties to the marriage are not living as husband and wife and does not intend to live as husband and wife.

After satisfying the above twin requirements and filing a joint petition for divorce by mutual consent, the parties must wait for at least six months, usually termed as the “cooling period”. After the end of this period, if the initial petition is not withdrawn by either of the parties or jointly, both the parties may move court by way of joint motion within the stipulated period of 18 months from the initial date of the filing of the joint petition. This period is given to parties to re-think their decision.

COOLING PERIOD: JUDICIAL PERSPECTIVE

The hon’ble Supreme Court has over the period of time has simplified the requirement of cooling period. In other words, the fetter of cooling period is not mandatory and in apt case to arrest the misery and prolonged agony of couple, trial courts are permitted to waive off the cooling period of Six (6) Months in the facts and circumstances of the case. It held that no doubt cooling-off period is to afford safeguard against any hasty decision, but to let purposeless marriage, continue, when there has been irretrievable breakdown, shall not serve the purpose.

Whereas, the Hindu Marriage Act 1955, at the time of its enactment did not contain the provision of 13 –B (1) & (2), relating to dissolution of Marriage, by mutual consent, which became part of statute book in 1976 and subsequently Family Courts Act (FCA) 1984 was also enacted and hence comprehensive modalities are now in place. The object of the FCA was to adopt human approach to settlement of family disputes to achieve socially desirable objects. It was in 1974, when under the chairmanship of Chief Justice PB Gajendragadhkar, Law Commission, while submitting 59^th Report on Hindu Marriage Act 1955 and Special Marriage Act 1954 opined:

         “ In our Report on the Code of Civil Procedure, we have had occasion to emphasis that in dealing with disputes concerning the family, the Courts ought to adopt a human approach radically different from that adopted in ordinary civil proceedings & that the Courts should make reasonable efforts of settlement before commencement of trial. In our view, it is essential that such an approach should be adopted in dealing with matrimonial disputes. We would suggest that in due course, State should think of establishing Family Courts with Presiding officers who will be qualified in law, no doubt, but who will be trained to deal with such disputes in a human way & to such courts all disputes concerning the family should be referred”

FAMILY COURTS ACT 1984

The Family Courts Act (FCA) 1984 has therefore been constituted pursuant to report as afore-stated and the matrimonial issues between the parties are adjudicated by the District Courts i.e Principal Family Court headed by District Judge or Additional District Judge or the  Family Judge headed by Additional District Judge

The provision of Jurisdiction of Family Courts comes under Chapter III and Section 7 of the Family Courts Act 1984. As per Section 7 (a) of the act FCA 1984, a Family Courts shall exercise jurisdiction exercisable by any district court or any sub-ordinate civil court under any law for the time being in force in respect of suit and proceedings of the nature referred to in the explanation; and  as per section 7 (b) of the FCA it will be deemed, for the purpose of exercising such jurisdiction under such law, to be a district court or, as the case may be a district court or, as the case may be, such sub-ordinate civil court for the area to which the jurisdiction of the Family Courts extends.

Explanation: The following nature of suit or proceedings shall be dealt with under FCA 1984:

(a)   A suit or proceedings between a parties to a marriage for a decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b)   A suit or proceedings for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c)  A suit or proceedings between the parties to a marriage with respect to the property of the parties or of either of them.

(d)  A suit or proceedings for an order or injunction in circumstances arising out of a marital relationship.

(e)  A suit or proceedings for a declaration as to the legitimacy of any person;

(f)   A suit or proceedings for maintenance;

(g)  A suit or proceeding in relations to the guardianship of the person or the custody of, or access to , any minor 

As per Section 7 (2) subject to other provisions of this Act, a Family court shall also have and exercise-

(a)  The jurisdiction exercisable by a Magistrate of the First Class, under Chapter IX (relating to order for maintenance  of wife, children and parents of the Code of Criminal Procedure; and

(b)   Such other jurisdiction as may be conferred on it by any other enactment.

Section 9 of the FCA casts a duty upon the family courts Judge to assist and persuade parties to come to a settlement. As per Section 11 of FCA the proceedings under the act is held in camera.  Section 19 of Family Courts Act relates to appeal against any judgment or order not being interlocutory order, before the high court, on facts and law, however, as per Section 19(2) of the Act, no appeal shall lie against the consent order. The limitation period of such appeal shall be Thirty (30) days from the date of judgment or order passed by the Family Courts. The term interlocutory order is not defined in the family Courts act 1984.

DISCUSSION ON NATURE OF SEC. 13- B (2)

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 a possibility of differences being reconciled. 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. The period mentioned in Section 13B(2) was not mandatory but directory, it would be open to the Court to exercise its discretion in the facts and circumstances of each case where there was no possibility of parties resuming cohabitation and there were chances of alternative rehabilitation.

LAW

Bhuwan Mohan Singh Vs Meena & Ors (2015) 6 SCC 353

 

The hon’ble Supreme Court in Para 13 had observed as under:

“….A Family Court Judge should remember that procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problem, but also gradually builds unthinkable and Everestine bitterness. It leads to cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the family judge must reveal the awareness & balance. Dilatory tactics by any of the parties has to be sternly dealt with for the family courts judge has to be alive to the facts that the lis before him pertains to emotional fragmentation & delay & can feed it to grow….”

In a matter captioned as Smruti Pahariya Vs Sanjay Pahariya bearing Civil Appeal No. 3465/2009 the hon’ble Supreme Court had noted that Ex-parte decree of divorce was granted by the family court u/s 13- B. Though, the joint petition was filed, but husband failed to appear after the first motion. The counsel for both the parties were the same. The efforts of service on husband failed and later on, order of substituted service was passed and the case was preponed on the application of wife and on the preponed date itself ex-parte decree was passed. The High Court of Bombay had set aside the decree and the wife (petitioner) had thus approached the Supreme Court.

The Supreme Court while upholding the order of Bombay High Court, thereby, ex-parte decree of divorce granted by the family court was set aside, observed that courts should be slow and circumspect before passing decree and should be satisfied about mutual consent, between the parties, on the basis of some tangible materials, which should clearly show, the existence of mutual consent and continued mutual consent is imperative for this purpose.        

Whether The Waiting Period Of Six Months Is Mandatory Or Directory

SUPREME COURT

(i)   In the case of Ashok Hurra v Rupa Ashok, AIR 1997 SC  it was held that “in exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.”

Therefore, the courts have been inclined more towards waiving off this period, if the circumstance of the case demands so, and where there is no chance of reconciliation, between the parties. Also, Supreme Court by way of its extraordinary powers as provided under Article 142 of the Indian Constitution can grant divorce without waiting for 6 months if it is satisfied that the marriage is irretrievably broken down. However, this power is restricted only to Supreme Court. There is still uncertainty whether High Courts and Family Courts have to mandatorily wait for a period of Six (6) months. However, as it is evident from many cases, where there is no possibility of reconciliation between the parties and the marriage has been broken down irretrievably, the courts should follow the spirit of law more than the formal requirements of the section.

The Apex Court proceeded to hold that the period mentioned in Section 13 B(2) isn't mandatory but directory & held as under:

The Supreme Court has held that if 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 6 months specified in Section 13B(2), in addition to the statutory period of 1 year under Section 13B(1) of separation of parties is already over before the 1st motion itself;

ii) all efforts for mediation or conciliation including efforts in terms of Order XXXII A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed & there is absolutely no likelihood of success in that direction by any further efforts;

iii) the concerned parties have genuinely settled their differences including alimony, custody of child, any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

It was thus held by the hon’ble Supreme Court that since the period mentioned in Section 13 B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts & circumstances of each case, where there is no possibility of parties resuming cohabitation & there're chances of alternative rehabilitation.

(ii)     In Dr Budhi Kota Subbarao Vs K parasaran & Ors AIR 1996 SC 2687 it is held by Supreme Court:

“No litigant has a right to unlimited drought on the court time & public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petition.

(iii) Amardeep singh vs harveen kaur  (2017) 8 SCC. 746.

The question which arises for consideration in this appeal is whether the minimum period of Six (6) months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be  relaxed 

in any exceptional situations.

The Apex Court proceeded to hold that the period mentioned in Section 13 B (2) isn't mandatory but directory & held the following:

“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 13B(2), it can do so after considering the following :-

i) the statutory period of 6 months specified in Section 13B(2), in addition to the statutory period of 1 year under Section 13B(1) of separation of parties is already over before the 1st motion itself;

ii) all efforts for mediation or conciliation including efforts in terms of Order XXXII A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed & there is absolutely no likelihood of success in that direction by any further efforts;

iii) the concerned parties have genuinely settled their differences including alimony, custody of child, any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

It was thus held by the hon’ble Supreme Court that since 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 & circumstances of each case, where there is no possibility of parties resuming cohabitation & there're chances of alternative rehabilitation.

(iii) Manish Goel v. Rohini Goel 2010(2)SCR 414

The hon’ble Supreme Court has held that statutory period of Six (6) months for filing the second petition u/s 13 (B) (2) of the Act has been prescribed, only, with a view to provide opportunity to the parties to reconcile their differences and withdraw the consent and petition for dissolution of marriage. In the present case, the petitioner had earlier filed a petition before a court of Gurgaon and subsequently before a family court in Delhi during the pendency of earlier petition and it clearly amounted to forum shopping. Moreover, just within Three (3) months of marriage the couple started living separately from each other and immediately after One year of separate living, two petitions were filed. Clearly, it lacked bona fide and therefore it is held that Article 142 which is extra-ordinary power available to the supreme Court could not have been invoked for waiving off cooling period. 

(iv)  In Dr Budhi Kota Subbarao Vs K Parasaran & Ors AIR 1996 SC 2687 it is held by Supreme Court:

           “No litigant has a right to unlimited drought on the court time & public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petition.

HIGH COURTS ON COOLING PERIOD

So far as the six months cooling period (Section 13 B (2) of HMA) between the two motions for divorce with mutual consent is concerned, whether that is mandatory or directory has always been a debatable issue. The clear principles could not emerge earlier. In the Grandhi Venkata Chitti Abbai AIR 1999 AP 91 , the court observed that- “If Section 13-B (2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated, more so, when, the parties started living separately for a considerable time. Thus s 13-B (2) of HMA, though, is mandatory in form, but, is directory in substance. Likewise, in the case of Dinesh Kumar Shukla v Neeta, AIR 2005 MP 106 it was held that the waiting period is directory in nature and it can be brought down from Six (6) months (provided the mandatory requirements of s 13-B (1) are fulfilled) when all efforts at reconciliation failed.

But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi, AIR 2000 AP 364 it was held that “the provision has a definite purpose and object, i.e. giving time to the parties for introspection and reconciliation. That purpose and object stares at us so clearly by the language expressed in s 13-B (2) of the Act robbing away the right of the court from considering the petition earlier than six months.”

The basic law thus emerges that if the parties were living separately for sufficiently long period, and arrived at a settlement for all the disputes between them including the issue of payment of permanent alimony as agreed, before filing the petition for divorce and if there are absolutely no chances of living together or second thought on the issue or in other words marriage is irretrievably broken down and there is no chances of reconciliation, there is no need for them to wait for another Six (6) months as required under the section.

In the past, the Supreme Court has given waiver to parties for this 'cooling period' but these cases have been exceptional. The question posed before the court was that whether courts can give relaxation to parties with regard to the 6-month waiting period mentioned under the section without placing reliance on Art. 142 of the Constitution. If the provisions are not mandatory, then there is no need for the courts to apply Article 142 for waiving off this period.

INTERPLAY BETWEEN ART. 142 AND STATUTORY PROVISIONS OF A LEGISLATION

While arriving at the decision, the court initiated the discussion on the interplay between Art. 142 of the Constitution and the statutory provisions of a legislation. The court cited several decisions of its own court where it was held that Art. 142 cannot be used to subvert or evade the scope of substantive provision of a statute. The power granted under the Article should only be used in certain exceptional circumstances.

The court also examined certain cases where this cooling period was waived because the court felt that the marriage has broken down irretrievably and the waiting period will only cause mental agony to the parties.

In its conclusion, the court held that the correct law has been laid down in Manish Goel v. Rohini Goel (Supra) , stating that jurisdiction of the Supreme Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion Under Section 13B, as doing so will be passing an order in contravention of a statutory provision. Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the Rule of law and not to pass the orders or directions which are contrary to what has been injected by law.

PRINCIPLES OF COOLING PERIOD WAIVER – AS EMERGED

If the Court dealing with a matter is satisfied that a case is made out to waive the statutory period Under Section 13B (2), it can do so after considering the following:

    i.        The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year Under Section 13B(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 XXXIIA Rule 3 Code of Civil Procedure/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 at the discretion of the concerned Court. 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.

CONSENT GIVEN CANNOT BE WITHDRAWN

The hon’ble Delhi High Court in the matter captioned as Shikha Bhatia Vs Gaurav Bhatia & Ors  Cont Cas (C) 274 of 2009 has found the respondent/contemnor as guilty of contempt in as much as it is held that if a party to the lis, who categorically undertakes to comply with the consent given in the proceedings before the family courts in first motion while seeking dissolution of marriage in terms of joint petition under Section 13B(1) of the Act cannot be allowed to withdraw from the consent. The agreement once entered upon or reached between the parties cannot resile from it and it cannot be whimsically ignored while filing second motion and such a motion cannot be allowed

In Avneesh Sood vs Tithi Sood bearing Civil Contempt Petition No. 559 OF 2011 & C.M.1932 OF 2012 | the hon’ble Delhi High Court held on the aforesaid line.

APPEAL OR WRIT IN HIGH COURTS

Though, provision of appeal is provided for u/s 19 of FCA 1984, but, the same is against the judgment or any substantive order and not against interlocutory orders. When a petition u/s 13 B of HMA is filed by parties for seeking divorce by mutual consent, and if the parties, prefer early disposal of their case, just after first motion, an application seeking exemption from undergoing cooling period of Six (6) Months is prayed for, or in other words waiver of the cooling period of Six (6) Months are sought by the parties. In case, the application seeking waiver is declined, the remedy available to the parties is to approach respective High Courts by way of a writ petition, since, the declining of application for waiver of cooling period may not be a substantive order. Since, appellate order shall be available only against the final order or substantive order as per section 19 of FCA 1984, hence, writ petition is preferred by a party or parties by impugning the order of declining waiver.

The view taken by the high courts in this regard are as under:

S.N	PARTICULARS	REMARK
1.	Madhya Pradesh High Court Kavisha Kukreja vs Puneet Kekreja on 3 October, 2017                                                W.P. No.5537/2017	In the light of the judgment pronounced by hon’ble Supreme Court in the case of Amardeep Singh V/s. Harveen Kaur (Supra) wherein it is held that 13 B(2) of HMA is not mandatory, but directory, and court may apply their discretion in facts and circumstances of each case and if it is found that there is no possibility of parties settling the matter. Cooling period was thus waived off.
2.	Smt. Iti vs Sharad   WP-8119-2016	The hon’ble Supreme Court has held in a matter captioned as Yogendra Yadav & Ors Vs State of Jharkhand & Anr (2014) 9 SCC 653 is that in the event settlement/compromise petition is filed by the parties, the criminal proceedings should be quashed to secure the ends of justice. It was with a view to avoid wastage of time and resources as no useful purpose could be served to continue with the criminal proceedings relating to matrimonial offence even in non- compoundable cases, as the exercise of continuing with case may be futile due to settlement.
3.	MP No. 2857/2018 (Smt. Baljeet Kaur Vs Harjeet Singh)	Amardeep singh case ratio of Apex court followed in writ petition and family court was directed to pass appropriate order.
4.	Smt. Vartika Prasad Bhargav vs Nitin Kumar Prasad on 17 September, 2019 WP No. 19522/2019 (SMT. VARTIKA PRASAD BHARGAVA VS NITIN KUMAR)	Amardeep singh case (Supra) ratio of Apex court followed in writ petition and family court was directed to pass appropriate order.
5.	Chhatisgarh High Court [Raju Kumar In re, 2021 SCC OnLine Chh 564,	Applying the ratio of Amardeep Singh ( Supra), the high court has laid down the following principles: (i)   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 : (a)    the statutory period of six months specified in 13 B (2), in addition to the statutory period of one year under 13 B (1) of separation of parties is already over before the first motion itself; (b) 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; (c) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (d) the waiting period will only prolong their agony. (e) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA 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; (f) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
6.	Allahabad High Court Arpit Garg Vs Ayushi Jaiswal Allahabad High Court) FIRST APPEAL No. - 115 of 2019 13 B(1)	Held that the one year separation preceding to the filing of mutual consent petition for seeking dissolution of marriage is an integral condition before filing a petition and if a petition is filed after the separation of less than one year after marriage, then, the petition shall not be maintainable. It was held as premature and against the principles laid down in section 13-B of the HMA.
	Madras High Court in the case of P.Lydia Jenifar vs. S.Rajadurai in C.M.A.(MD)No.395 of 2017 (Decided on 20.09.2017),	relying upon ample number of judgments, has given a categorical finding that granting divorce to a couple, after considerable period of time, is nothing but operation success but patient died and has held as follows: Another question whether direction could be issued to family court by a writ court to pass the decree of divorce by waiving off cooling period of six months. It is held that as 13 (B) (2) is held as directory in view of the law laid down in the case of Nikhil Kumar v. Rupali Kumar reported in AIR 2016 SC 2163, in the case of Virendra Singh Rajak vs. Seema Rajak reported in 2015 (3) MPLJ 188 and in the case of Deepak (Dr.) v. Smt.Tanuja reported in 2003 (2) JLJ 121 the cooling period is liable to be waived off and the learned Family Court could be directed to pass the divorce decree.

 

Permanent alimony

It is no res integra now that any of the spouses may be entitled to maintenance or permanent alimony.

In a discussion u/s 13 (B) (1) & (2) the discussion on permanent alimony that may be payable to the wife is integral. Section 25 of HMA 1955 contains the principles that at the time of passing of decree of divorce or subsequently thereto, if application is preferred by husband or wife, the court shall order to pay the alimony payable to any party and the amount so calculated shall be monthly sum or periodical sum for a term not exceeding the life of the applicant as having regard to the respondent/non-applicant’s own income and other property. Through 1976 amendment, the relevant criteria added in this regard is the conduct of the parties and circumstances of the case. The Section also provision for making charge on immoveable properties of respondent. The Section 25(2) includes change of circumstances after granting of maintenance as relevant and the order may accordingly be varied or modified or rescinded. Section 25 (3) is of importance, in as much as , remarriage by spouse is a relevant criteria as also the issue of remaining chaste. Under Section 18 of Hindu Adoption & maintenance Act 1956 (HAMA) only wife can seek interim maintenance or maintenance whereas u/s 24 and 25 of HMA 1955 both husband and wife can seek maintenance or permanent alimony.

                                

          

                          REMARK

The law as regards dissolution of marriage by mutual consent as per section 13 (B) (1) &(2) has evolved over the years and after enacting of  the HMA 1955. It was after a considerable while that HMA 1955 was Amendment Act 1976 was passed vide that Section 13 B (1) & (2) was inserted in the statute book. The Law Commission of India in the meanwhile had recommended for constituting Family Courts and Family Courts Act 1984 was eventually codified and thereafter the matters related to family disputes remained the exclusive domain of family courts. The law and precedents even on 13 (B) (1) & (2) continued to evolve keeping in mind the welfare of family and even enforcing and facilitating, severance of nuptial ties, if the continuance in relationship was found irretrievably ruptured with no plausible chance of reconciliation. Though, the cherished object of the FCA 1984 and HMA 1955 as other laws for the time being in force has been to save marriage, but, when the continuation in marriage is akin to gangrene and the agony is likely to be prolonged and unabated , then outlet is devised. The Acts, provisions, law and precedents, has stood the test of time. Though, life is a dynamic process and no changes could be treated as permanent, but, surely,  the family laws and judicial precedents have risen to the occasion.

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