Divorce Laws in India -2017 Some changes Waiver of 6 months cooling period held that the minimum cooling period of six months for granting the decree of divorce under the Hindu law can be waived by a trial court if there was no possibility of cohabitation between an estranged couple and there is a dispute between the husband and wife pending litigation.
The 1955 Hindu Marriage Act provides for a statutory cooling period of six months between the first and the last motion for seeking divorce by mutual consent to explore the possibility of settlement and cohabitation.
'We are of the view that the period mentioned in Section 13B (2) is not mandatory but directory; it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation,' a Bench comprising Justices A.K. Goel and U.U. Lalit said.
The apex court said the minimum period of six months can be relaxed by the trial court in certain situations and the estranged couple, who are seeking divorce with mutual consent, can file waiver application after a week of filing the first motion.
The top court also said that in conducting such proceedings, the trial court 'can also use the medium of video conferencing and permit genuine representation of the parties through close relations, such as parents or siblings, where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice.'
The court noted in its verdict that the object of the cooling off period was to safeguard against a 'hurried decision' if there was otherwise a possibility of differences being reconciled.
'Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option,' it said.
'In determining the question whether the provision is mandatory or directory, language alone is not always decisive. The court has to have the regard to the context, the subject matter and the object of the provision,' it said.
The Bench was dealing with a plea filed by an estranged couple which had sought waiver of the six month period on the ground that they have been living separately for the past eight years and there was no possibility of their re-union.
Here is the link of judgement Supreme court judgment on cooling off
498a guidelines on registration of FIR
The question before the Hon'ble Supreme Court of India ('Apex Court') in Criminal Appeal No. 1265/2017 (Rajesh Sharma & Ors. vs State of UP) was whether any directions are called for to prevent the misuse of Section 498A of the Code of Criminal Procedure, 1898 ('Cr.P.C.').
The Apex Court, after taking into account various judgments wherein the Courts had judicially acknowledged the misuse of the provisions of Section 498A of Cr. P. C. and reports, issued, inter- alia, the following directions;
- In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities (DLSA) preferably comprising of 3 members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the DLSA.
- The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
- The Committee members will not be called as witnesses.
- Every complaint under S. 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
- Report of such committee be given to the Authority by whom the complaint is referred to it latest within 1 month from the date of receipt of complaint.
- The committee may give its brief report about the factual aspects and its opinion in the matter.
- Till report of the committee is received, no arrest should normally be effected.
- The report may be then considered by the Investigating Officer (I.O.) or the Magistrate on its own merit.
- Complaints under S. 498A and other connected offences may be investigated only by a designated I.O. of the area. Such designated officer may be required to undergo training for such duration as may be considered appropriate;
- In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
- If a bail application is filed with at least 1 clear day's notice to the Public Prosecutor/complainant, the same may be decided on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
- In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
- It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes;
- Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
- These directions will not apply to the offences involving tangible physical injuries or death.
The complete judgement is here 498a guidelines
For some days Hon'ble Supreme court was not lenient in allowing transfer petition in supreme court in favor of wife and is mostly dismissing these kind of petitions and citing Krishna Veni Nagam vs Harish Nigam
In the aforesaid judgement the supreme court relying on Para-17 and 18 as mentioned below.
17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.
18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:-
i) Availability of video conferencing facility.
ii) Availability of legal aid service.
iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.
iv) E-mail address/phone number, if any, at which litigant from out station may communicate.
Therefore the aforementioned guidelines were issued to all the High courts to make arrangements for video conferencing instead of transferring the petition, therefore dismissing all the transfer petition filed in the Hon'ble Supreme Court.
For husband the judgement of Krishna Veni Nagam vs Harish Nigam is a valid defense for husbands for defending transfer petition supreme court.
However this Judgement was referred to higher bench which has now overruled the judgement of Krishna Veni Nagam vs Harish Nigam
In Santhani Vs. Vijaya Venketesh the supreme court
The majority judgment by CJI Dipak Misra and Justice Khanwilkar held the following:
On video conferencing the court held
When most of the time, a case is filed for transfer relating to matrimonial disputes governed by the 1984 Act, the statutory right of a woman cannot be nullified by taking route to technological advancement and destroying her right under a law, more so, when it relates to family matters. In our considered opinion, dignity of women is sustained and put on a higher pedestal if her choice is respected. That will be in consonance with Article 15(3) of the Constitution.'
(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.
(ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent.
There can be other grounds for husband as well like-:
a. Manipulation of court records.
b. Attack on husband by wife or relatives.
c. Petition filed to harass husband
d. Petition filed without jurisdiction by reading petition only.
Tags :Family Law