Legal Articles


KUDOS to the Supreme Court of India for it on September 12, 2017 in Amardeep Singh v. Harveen Kaur  ruled that the district/family courts across the country would too henceforth have the discretion to waive off the cooling off/waiting period as provided for the second motion in cases relating to “divorce by mutual consent” as provided in Section 13B of  Hindu Marriage Act (HMA), 1955, of course, by taking relevant facts and circumstances in each case into their record rather than in each and every other case.  Hitherto, power to waive off this period, which is usually of six months, has been only exercised by the Apex Court by invoking its power as conferred under Article 142 of Constitution of India. Although the latest judicial pronouncement  is a sort of big reprieve for all  aggrieved estranged couples who are no more able to keep their nuptial knot intact for whatever reasons, but this writer-advocate would like to draw here the attention of all that in hitherto over three years tenure of  ruling Government there has not been a single word regarding re-introduction of  “The Marriage Laws (Amendment) Bill, 2013” which too provided for the same along with “Irretrievable Breakdown of Marriage” as a ground for divorce. This Bill though originally tabled in Aug, 2010 but it got passed only in Rajya Sabha in Aug, 2013 and with the dissolution of then 15th Lok Sabha, this Bill got  lapsed rather than its enactment into a duly enacted Act of Parliament.  Here this writer would like to mention that although Aug, 2010 tabled version of the ibid Bill completely dispensed with prescribed period of six months to eighteen months as provided in Sec 13B(2), but the Department Related Parliamentary Standing Committee on Personnel, Public Grievances , Law and Justice in its report opined otherwise and rather suggested its retention.  However, the Aug, 2013 version of Bill as passed by Rajya Sabha introduced two ‘Provisos’ in Sec 13B(2) . While the first proviso specified that on an application being made by both the parties, the court may reduce the period specified under this sub-section to a lesser period and the court may waive off the requirement for moving the motion by both the parties, if it is satisfied that the parties to the marriage are not in a position to reconcile their differences. Further, the second proviso laid down that where one of the parties fails to appear before the court within a period of three years from the date of presentation of the petition under sub-section (1), the court may, on an application made by the other party, waive the requirement of moving the motion by both the parties. It would have been much appreciable if this Bill had got passed in then Lok Sabha too. Be that as it may, it is high time that our Parliament must wake up to the contemporary realities as witnessed in marital relationships. Apart from due amendment(s) in provision relating to “divorce by mutual consent” regarding dispensing away with of cooling off /waiting period, there is also an urgent need for explicitly incorporating “Irretrievable Breakdown of Marriage” as a ground for divorce too was originally recommended decades back. There can’t be any second opinion that when wedlock becomes a deadlock, law ought not turn a blind eye to breakdown of marriage. At such stage, it isn’t wise for the courts to refuse divorce to a spouse and asking him to live with a dead marriage merely because it use to be well regarded that the same has been Made in Heaven and Celebrated on Earth. Those marriages which can’t be sustained at all after every effort and endeavour has failed to revive them must be allowed to be broken without any legal hitch.

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