Breaking Down the Waiting Game: Quick Divorce Through Mutual Consent (Article Published in Indian Express Bangalore Edition on 05.10.2023)
Section 13B of the Hindu Marriage Act allows a husband and wife to agree to get a divorce. But there's a rule that says they must wait for six months before the divorce procedures is completed and order is obtained. This waiting time is meant for them to re-think things over and make sure they really want to end their marriage.
Sometimes, marriages break down because the couple can't get along, there's cruelty, abuse, or they simply can't live together anymore. In such cases, they may choose to peacefully live apart and later ask the court to legally end their marriage.
The idea behind this new change in law is to help couples who are in mental stress and trauma and willing to mutually end their marriage. Thus, the change helps to end the marriage quickly and without a lot of hassle. However, there's a condition that both parties must be Hindus mainly because the concept is brought a change under Hindu marriage Act.
Initially the revolution in reduction of waiting period was brought about by the Hon’ble Supreme Court of India when in certain special circumstances the court can use its special powers under Article 142(1) of the Indian Constitution to make a fair decision and end the marriage quicker. In a recent court case, it was decided that in some situations, the six-month waiting period can be skipped. The court considers factors like how long the couple has been married, how long they've been apart, whether there are children, and if both parties agree to the divorce.
The waiting period is there to give couples time to think, but if there's no chance of making things better, the court can skip it. This kind of divorce is faster and less expensive than a regular one, and it's a way out of a difficult situation for many people.
In the end, it's up to the couple to decide if they want to stay together or get a divorce. If they both agree and follow the rules, they can end their marriage relatively quickly and without a lot of legal trouble.
Section 13B of the Hindu Marriage Act
Section 13B of the Hindu Marriage Act is about a special way to get divorced when both husband and wife agree. Here's how it works:
Agreement to Divorce: Both husband and wife must agree that they want to end their marriage. They also need to have been living separately for at least a year, and they can't live together anymore. They also should agree on other related issues such as what are the terms of maintenance/alimony to be paid and where the child if any will be living/studying, what are visiting rights and who pays the child’s Expenses.
Waiting Period: After they agree and ask for a divorce, as per law they need to wait for six months before it becomes final/official. This waiting period is like a cooling-off time. It's there to make sure they really want to end their marriage.
Court Decision: If, after six months, they still want to get divorced, the court will listen to them and check if everything is true. If the court is satisfied that the marriage has indeed broken down, they will grant the divorce. The divorce will be official from that date.
While deciding a case in 2021, the siting Judge explained that Section 13B of the Hindu Marriage Act is designed to make it easier for couples to divorce when they both agree. It's not meant to harm the idea of marriage. This law helps avoid long and unnecessary legal battles when a marriage can't be saved.
It was also mentioned that there's a six-month waiting period in case the couple changes their minds and wants to give their marriage another chance. If they still want to divorce after those six months, the court will make it official.
So, this law is about making divorce smoother for couples who agree, but it also gives them time to be sure about their decision.
Reasons for Skipping Cooling Off Period in Divorce
In a certain case, the Supreme Court allowed a request to skip the waiting period in mutual consent divorce. They did this after thinking about the following things:
How Long Were They Married?: They looked at how long the couple had been married.
Did They Stay Together?: They also checked how long the couple lived together as husband and wife.
Time Apart: They thought about how much time the couple had spent apart.
Legal Process Time: The court considered how long the divorce case had been going on.
Other Legal Stuff: They checked if there were any other legal matters between the couple.
Chance of Getting Back Together: The court thought about whether there was any chance that the couple might get back together.
Children: They looked at whether the couple had kids together.
Agreement: Lastly, they wanted to be sure that the couple had freely and willingly agreed to all the terms of the divorce, like alimony, child support, and custody arrangements.
Courts Have the Power to Skip the Waiting Period
The courts have the power to skip the waiting period mentioned in Section 13B of the Hindu Marriage Act. They can do this under Article 142(1) of the Indian Constitution. This article allows the Supreme Court to make decisions to bring complete justice in any case before it.
This power has been used to help couples who want to end their marriage under Section 13B of the Hindu Marriage Act and don't want to wait. It's a way to make things easier for them.
In an another case, the Supreme Court explained that Hindu marriages are seen as sacred and long-lasting. But they also said that sometimes, marriages break down completely, and it's not good to make people wait when there's no chance of fixing things.
So, they use Article 142(1) to help those couples and skip the waiting period. But this is only done if the court is sure that the marriage is beyond repair, and it's the best option for everyone involved. They don't do it just because someone asks.
What Does "Irretrievable Breakdown of Marriage" Mean?
Irretrievable breakdown of marriage is a term used to describe a situation where one or both spouses can't or won't live together as husband and wife anymore. This means they've given up on their duties and responsibilities as a married couple, and there's no hope of them coming back together.
The idea of an irretrievable breakdown of marriage is discussed in a report called Law Commission Report No.71 about the Hindu Marriage Act, 1955. This report talks about how sometimes marriages reach a point where they just can't be fixed.
Modern Approach to Broken Marriages
In a certain case, the Delhi High Court said that it's not practical or fair to force people to stay married when their relationship is completely broken, and there's no chance they'll live together as husband and wife.
Similarly, in another case, the court said that it's important to balance respect for marriage with the reality of a marriage that has totally fallen apart. They mentioned that in recent years, the courts have become more understanding of this situation and are willing to grant divorces even when, in the past, they might not have.
A Worldwide Concept
The idea of a marriage breaking down, rather than just blaming one person, has been accepted in many countries around the world. The big question was whether divorce should only happen if someone did something wrong, or if it could also happen when the marriage itself was just not working.
For example, in New Zealand, they changed their laws in 1920 to allow couples to get divorced if they'd been separated for three years or more. This change gave the courts the power to decide if a divorce was the right thing to do.
In general, the idea is that if a marriage has stopped working for a long time, it's better for everyone involved to end it officially. Keeping the legal ties of marriage when the real marriage is long gone doesn't make sense and can even cause harm.
Why Mutual Consent Divorce Is Preferred
Mutual consent divorce is a way for married couples to quickly end their marriage when both parties agree to it. It's a much faster and cheaper process compared to the usual long and complex divorce procedures.
Here's why it's preferred:
Speed and Efficiency: It gets the job done quickly. Regular divorces can take a long time, but with mutual consent, things move faster.
Cost-Effective: It's less expensive. Legal battles can be costly, so this option helps save money.
Negotiation Power: Couples can work out the terms of their separation themselves. For instance, they can discuss who gets custody of their child, who pays for support, and how to divide their belongings.
To qualify for mutual consent divorce under Section 13B, certain conditions must be met:
Living Apart: The couple must have lived separately for at least one year.
Failed Reconciliation: They should have tried but failed to live together as a married couple.
Mutual Agreement: Both parties must freely agree to dissolve the marriage.
Withdrawal Period: Either party can withdraw the divorce request within six months. After divorce once granted, it's not allowed.
If the couple can't agree on everything, the court may suggest mediation to help them reach an agreement.
In a certain case, the court extended the power to all lower courts to grant mutual consent divorce without waiting for a specific cooling-off period. This is because in some cases, insisting on a waiting period can make the situation worse for the couple.
When a marriage has truly broken down and there's no hope of fixing it, mutual consent divorce is a sensible way out. It allows couples to decide what's best for them, especially if there are children involved. This type of divorce isn't about blame; it's about finding a solution and moving forward.
In a case, the court emphasized that if both parties have genuinely resolved their differences, including issues like financial support and child custody, sticking to a strict waiting period would only make things harder for them.
Mutual consent divorce is a practical, cost-effective, and relatively quick option that spares couples from long and painful legal battles.