Waiver Of Six Months Waiting Period In Mutual Consent Divorce Petition
Prior to 11/12/2021, if any petition for grant of divorce by mutual consent under Section. 13 (b) of The Hindu Marriage Act, 1955, was filed in the court, then the parties had to wait for six months from the date of filing of the divorce petition for passing of final order. Final order granting divorce could be passed only after expiry of mandatory six months waiting period from the day of filing of the petition. The purpose of six months waiting period was to give the couple time to reconsider their decision.
The court had no discretionary power to grant divorce by mutual consent by waiving off six months waiting period. In one of the matters wherein the husband suffered from relapse of cancer and there was high possibility of his death prior to expiry of six months waiting period, the judge showed his inability to waive of six months waiting period as there was no provision under the law to waive of mandatory six months waiting period.
On 11/12/2021, the Hon’ble Justices Indira Banerjee & J. K. Maheshwari of the Supreme Court of India, in the matter of Amit Kumar v. Suman Beniwal, passed a judgement stating that courts have discretionary power to make an exception to the 6-month waiting period usually required for divorce by mutual consent under Hindu law. The Hon’ble Court concluded that Article 142 of the Constitution of India authorises the Hon’ble Court to pass any order necessary to do complete justice, it can waive the 6-month “cooling off” period on a case-by-case basis.
Order for waiver of six months waiting period is discretionary in nature and the parties have to give reasonable explanation to the judge for waiver of six months waiting period. If waiver of six months waiting period is granted by the Hon’ble Court, then order for grant of mutual consent divorce can be passed without waiting for expiry of six months waiting period.
