• 12 03 24
• vedika chaubey
• Blogs

COOLING OFF PERIOD- MORE STRESS, MORE HASSLE

It is of extreme pain and hassle when a couple goes through a divorce. Does not matter how old or how young their marriage is, they have to live their differences, fights and unpleasure again and again in the court as well as the other formalities involved in the process of divorce. This definitely should not mean that the cooling-off period in Section 13B is unnecessary or damaging. There are many cases where the cooling-off period has mend ways in the marriage, thus, leading to reconciliation. There have also been cases where the spouse suffers from clinical depression due to the cooling-off period, legal hassle, waiting for the court,s "next hearing" and having to bear the partner till then.

Marriage is a sacred bond in society and an institution in the courts. It had never been a personal activity of the spouse since time immemorial. Hence, interference of the court and the society is nothing new and cannot be gotten rid off. What can be done is limiting the interference with the motive to lighten up the court's burden and being considerate towards the couple.

In 2017, the Supreme Court cut off the cooling period for divorce by six months under the Hindu Marriage Act and ruled that divorce can be granted without the mandatory 18-month period of separation between the couple, mentioning 'The waiting period will only prolong their agony' and acknowledging that the waiting period should be done away with in cases where there is no way to save the marriage and all efforts at mediation and conciliation have run their course. In September 2020, the Punjab High Court referred to Apex Court's ruling in the case of Amardeep Singh vs. Harveen Kaur AIR 2017 SC 4417, wherein it was stated that,

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 parties is already over before the first motion itself

ii) 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

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

iv) the waiting period will only prolong their agony.

Previously, once a couple moved to a court of law for divorce under the Hindu Marriage Act, they had to wait for a minimum period of six months. The cooling-off period was mandatory in order to-

●    Prevent couples from taking any hasty decision to end their marriage.

●   Them to have enough time to think through their decision to separate.

This is a step towards liberation from the legal ties in the divorce process as the court recognizes and acknowledges that the forceful cooling-off takes a toll on the couples and increases the task of court in cases where the spouse have settled all differences relating to alimony, custody of children etc.

In another October 2020 case at Bombay High Court, a couple presented a joint Petition before the Family Court below for grant of divorce by mutual consent pursuant to the provisions of Section 13B of the Hindu Marriage Act, 1955. On the family court rejecting the joint application for waiving statutory period, they moved to the High Court. The Court acknowledged that every effort has to be made to save a marriage but pointed out that '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.' By also notifying that the Family Court too must act considerably, the court said- 'let the Family Court decide the application for divorce as expeditiously as possible and if required by directing parties attend the Family Court proceedings physically or through video conferencing as it deems fit in the facts and circumstances of the case'.

Couples who have thought their decision through have no settlement demands from each other and are sure about parting ways should not be put through a reconciliation process as it does not make their decision change but instead leads to unnecessary interference leaving less space for individual liberty. It is obvious that when a couple takes up the pain to approach the court and file a mutual divorce, they have tried all possible ways to reunite. A counselling must be done in order to prevent hasty decisions but the cooling-off period can be kept optional. As of September 2020, India has almost 4 crore pending cases spanning the Supreme Court, various high courts and the numerous district and subordinate courts, according to written replies submitted by the Ministry of Law and Justice in Parliament. Forgoing cases which do not demand high legal interference and can be left to the discretion of a matured couple might be a win-win. It is great that the same is getting recognized in the court but it is on the different courts to follow or not follow the same, hence leaving a peck of sigh and only hopes for healthier mutual divorce across the country.

Speaking from my personal experience, I filed a mutual divorce in July 2020 in Thane court where the couple intended to divorce without anything to settle or exchange. In spite of being friends and live-in partner for almost 7 years, after the marriage, they realized within few months that they are not compatible with each other and had serious differences. They took this decision after several attempts for reconciliation, hence they are left with nothing but a mutual divorce. When the couple is sure that there would be no sign of reconciliation even after the cooling-off period, then the court should waive off the period. But in this case, the court rejected the cooling period application which demanded a waive off. The wife wants to shift to Gujrat to her family but she is still waiting for the completion of 6 months. This has become not only exhausting for her but also the husband. The legislature should not tie the hands of people who have willingly tried the best way out and have taken a decision on their mature personal capacity, and make the process unbearable.

To conclude, I just want say that there are many couples who have genuine issues and have tried for reconciliation hard and have not succeeded to save their marriage. Hence, to avoid increasing the judiciary burden and files, the reasons should be considered for waiving off the cooling period. This will save the time of the couple and courts both.