Can a mutual consent divorce be granted in less than six months?

Can a Mutual Consent Divorce Be Granted in Less Than Six Months?

Yes, under specific circumstances, a mutual consent divorce can be granted in less than six months. The statutory six-month waiting period, which is mandated under Section 13B(2) of the Hindu Marriage Act, 1955, is generally intended to allow the spouses time for reconciliation. However, the Supreme Court of India has clarified that this period can be waived if the couple satisfies certain conditions and the court is convinced that reconciliation is not possible.

Let us examine this in detail:

Legal Provisions for Mutual Consent Divorce

1. Section 13B of the Hindu Marriage Act, 1955:
   • Section 13B(1): Requires spouses to file a joint petition for divorce after living separately for at least one year.
   • Section 13B(2): Imposes a mandatory waiting period of 6 months between the first and second motions to allow the couple to reconsider their decision.
2. Waiver of Waiting Period:
   • As per judicial interpretations and case laws, the six-month waiting period is not absolute and can be waived by the court in exceptional circumstances.

Supreme Court Judgment on Waiver of the Waiting Period

In the landmark case of Amardeep Singh v. Harveen Kaur (2017), the Supreme Court of India laid down guidelines for granting a waiver of the six-month waiting period. The judgment established that:

1. Objective of the Waiting Period:
   The six-month period is aimed at giving the spouses time to reconcile. If reconciliation is not possible and the marriage is irretrievably broken, the court can waive this period.
2. Conditions for Waiver: The following conditions must be satisfied:
   • The statutory requirement of separation for at least one year under Section 13B(1) has been fulfilled.
   • The spouses have genuinely resolved all their disputes, including custody, alimony, property division, etc.
   • The couple demonstrates that there is no chance of reconciliation, and prolonging the waiting period would only delay the inevitable.
   • Both parties must appear before the court and file a formal application requesting a waiver.
3. Jurisdiction of the Court: The court, exercising its discretionary power, must be satisfied that:
   • The decision to divorce is voluntary and informed.
   • Waiving the waiting period will not prejudice the interests of either spouse.

High Courts’ Interpretation on Waiver

Several High Courts have followed the guidelines laid down in the Amardeep Singh case. For example:

• The Delhi High Court has emphasized that the waiver can be granted if spouses convincingly prove that their separation is irreversible.
• The Bombay High Court ruled that parties seeking the waiver must submit all necessary documents and a clear affidavit showing there is no scope for reconciliation.

Procedure for Waiver of Six-Month Waiting Period

1. Filing of Joint Petition (First Motion):
   • The parties jointly file the first motion for divorce under Section 13B(1) before a Family Court.
2. Application for Waiver:
   • Along with or after filing the first motion, the parties may file an application seeking a waiver of the six-month waiting period.
3. Submission of Evidence:
   • Provide supporting documents and affidavits, such as:
     • Proof of separation for over one year.
     • Settlement agreement resolving financial and custody matters.
     • Statements demonstrating the irretrievable breakdown of marriage.
4. Hearing and Order:
   • The court will evaluate the application and, if satisfied, issue an order waiving the waiting period.
   • The second motion can then be filed immediately, and the decree of divorce may be granted.

Important Points

1. Court’s Discretion:
   • Waiver of the six-month waiting period is not automatic; it is subject to the court’s discretion.
2. Prolonged Separation:
   • Courts are more likely to grant a waiver if the couple has already been living separately for several years before filing the divorce petition.
3. No Scope for Reconciliation:
   • The burden of proof lies on the parties to convince the court that no chance of reconciliation exists.
4. Cases of Emergency or Urgency:
   • Waivers may also be granted in urgent situations, such as the need to remarry for specific personal or professional reasons.

Examples of Grounds for Granting Waiver

• The couple has been living separately for many years and has no intention of resuming marital life.
• All disputes, including those related to maintenance, property, and child custody, are amicably resolved.
• Either party has pressing reasons for remarriage, such as relocation or starting a new life.

FAQs

1. Can I file directly for a waiver with the second motion?

No, the waiver application is filed with or after the first motion, and the court must approve it before the second motion can proceed.

2. What happens if the court denies the waiver request?

If the court denies the waiver, the parties must wait for the mandatory six-month period before filing the second motion.

3. Does the waiver apply to all personal laws?

The waiver under Amardeep Singh primarily applies to the Hindu Marriage Act. However, courts may adopt similar reasoning under the Special Marriage Act, 1954, and other personal laws.

Conclusion

A mutual consent divorce can indeed be granted in less than six months if the Family Court or High Court is satisfied that the waiting period serves no purpose due to prolonged separation or an irretrievable breakdown of the marriage. However, this is subject to judicial discretion and strict compliance with the conditions laid down by the court. Parties should ensure that all disputes are settled amicably and provide sufficient evidence to justify the waiver.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

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Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304

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