In India, arranged marriages are the centuries old tradition dating back to the fourth century. The culture of arranged marriage is considered as a foundation stone of the Indian marriage system. But over the years there has been changes in marriage. Couples see divorce as also a part of it. Before 1858, taking a divorce was difficult and rare.
In India, Divorce is a personal matter and relates to religion. According to the United Nations study "Progress of the World's Women 2019-2020: Families in a Changing World," non-marriage is still exceedingly unusual in India, although divorce rates have doubled in the last two decades.
Professor Clark defines divorce simply as "the termination of a valid marriage." In India due to the codification of the divorce law, men and women are now equally able to seek divorce. The Hindu Marriage Act, 1955 governs the divorce for the Jains, Sikhs, Hindus and Buddhists; the Muslims by Dissolution of Muslim Marriage Act, 1939; the Parsis by Parsi Marriage and Divorce Act, 1939; and Christians are governed by the Indian Divorce Act, 1869.
Under the Hindu Marriage Act, 1955, Section 13B(2) prohibits a divorce from being granted before six months have passed since the divorce petition was filed by mutual consent. The time limit was set to allow the parties to reconsider their positions so that the court will only grant a divorce by mutual consent if there is no hope of reconciliation.
The Hindu Marriage Act, 1955, Section 13B, allows married couples to seek divorce by mutual consent. Section 13B(2) states that for a statutory period, a cooling period of six months between the first and the last motion for divorce by consensual consent is required to explore the possibility of settlement and cohabitation. In Amardeep Singh v. Harveen Kaur, the Supreme Court considered whether this six-month cooling-off period could be waived.
In the landmark case of Amardeep Singh, the couple were married in 1994 and since 2008 they were living separately. They sought waiver of the period of six months on the ground that they have been living separately for the last eight years and there is no possibility of reunion. The question arose whether the exercise of power under Article 142 of the Constitution to waive the period under Section 13B(2) of the Hindu Marriage Act was mandatory or directory.
The court decided that Section 13B(2) is advisory rather than mandatory, and that any court dealing with a mutual divorce case may waive the cooling-off period subject to the following:
Article 142 provides a unique power to the Supreme Court to do "complete justice" between the parties — where law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute. In Amardeep Singh, the Court held that Section 13B(2) is directory and not mandatory, meaning courts can waive the cooling-off period in appropriate cases without necessarily invoking Article 142.
In Nikhil Kumar vs. Rupali Kumar, the statutory period of six months was waived by the Court under Article 142 and the marriage was dissolved. In Dineshkumar Shukla vs. Neeta, the court held that the waiting period can be brought down from six months where a divorce petition was already pending for more than six months.
Amardeep Singh and Akshara A. v. Rohin S. Raveendran are two different aspects but both want the waiving of the cooling-off period. In Amardeep's case, they want the 6-month cooling off period under Section 13B(2) waived on the ground of living separately for over eight years. While in Akshara's case, the couple sought waiving of the one-year waiting period after marriage (Section 14) as well as the 6-month cooling-off period.
Rising urbanization and increased awareness of rights are causing the divorce rate to rise. Now getting a divorce has become easier. More and more people are opting for divorce by mutual consent for a fast-track resolution. The waiting period provided by the court is to explore the possibility of settlement, but sometimes waiving this period is necessary as the waiting period will only worsen the situation for truly irreconcilable couples.