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IDENTICAL MINOR CHANGES

SIX MONTHS’ COOLING OFF PERIOD IN DIVORCE CAN BE DISPENSED WITH– SAYS THE SUPREME COURT IN
EXERCISE OF IT’S POWERS VESTED UNDER ARTICLE 142 OF THE CONSTITUTION OF INDIA
In the most recent judgment titled Shilpa Sailesh v. Varun Sreenivasan passed on May 01, 2023, the
Supreme Court (hereinafter referred as the Court) - Five-member Bench comprising Justices Sanjay Kishan
Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and J.K. Maheshwari while answering to the reference
made“Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of
India when there is complete and irretrievable breakdown of marriage in spite of the other spouses
opposing the prayer?” held that Supreme Court can exercise power under Article 142(1) of the
Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual
consent dispensing with the mandatory cooling off period of six months as prescribed in sub-section (2) of
Section 13-B of the Hindu Marriage Act 1955.
As observed by the Court,
“....The courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental
to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-
technical view can be counter-productive as pendency itself causes pain, suffering and harassment and,
consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby
bringing the agony, affliction, and torment to an end”
“......this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to
dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be
exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established
show that the marriage has completely failed and there is no possibility that the parties will cohabit
together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is
required to also balance the circumstances and the background in which the party opposing the
dissolution is placed.”
Earlier in 2017, in the case of Amardeep Singh v. Harveen Kaur , the Supreme Court laid down the certain
factors for waiving off the waiting period of 6 months for divorce which was again reiterated in persent
case stating that “......this court in view of settlement between the parties, has the discretion to dissolve
the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural
requirement to move the second motion. This power should be exercised with care and caution, keeping
in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in
exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings
and orders, including criminal proceedings”
Some of the factors laid down in Amardeep Singh v. Harveen Kaur (supra) are as follows:
“1. 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;
2. 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 effort;
3. The parties have genuinely settled their differences including alimony, custody of child or any other
pending issues between the parties;
4. The waiting period will only prolong their agony.”
If these conditions are being fulfilled, the Court in the very same case laid down some question depending
on the answers of which it could consider granting divorce through the powers vested in it by Article 142.
“(i) How long parties have been married?
(ii) How long litigation is pending?
(iii) How long they have been staying apart?
(iv) Are there any other proceedings between the parties?
(v) Have the parties attended mediation/ conciliation?
(vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any
other pending issues between the parties?”
Post Amardeep Singh (supra) in 2021, the Court in the case of Amit Kumar v. Suman Beniwal reiterated its
observation made in “Amardeep Singh Vs Harveen Kaur, Civil Appeal No. 11158 Of 2017” stating that this
Court held in the said judgment that the statutory waiting period of at least six months mentioned in
Section 13B (2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to
the Court to exercise its discretion to waive the requirement of Section 13B(2), having regard to the facts
and circumstances of the case, if there was no possibility of reconciliation between the spouses, and the
waiting period would serve no purpose except to prolong their agony.
The objective is to discourage the matrimonial litigation as prolongation of such litigation is detrimental to
both the parties who lose their young age in chasing multiple litigations. When it is observed that there is
no scope of reconciliation, then in the interest of justice divorce may be granted by waiving off the cooling
period.