cooling period for divorce

1) There have been conflicting judgements on this regard that whether the courts should mandatorily wait for a period of six months as given in the sub section(2) of Section 13B. In the Grandhi Venkata Chitti Abbai case, the court observed that- “If Section 13-B (2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated more so when the parties started living separately for a considerable time. Thus s 13-B (2) though is mandatory in form is directory in substance. Likewise, in the case of Dinesh Kumar Shukla v Neeta, it was held that the waiting period is directory in nature and it can be brought down from 6 months( provided the mandatory requirements of s 13-B (1) are fulfilled) when all efforts at reconciliation failed.

2) But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi, it was held that “the provision has a definite purpose and object, i.e. giving time to the parties for introspection and reconciliation. That purpose and object stares at us so clearly by the language expressed in s 13-B (2) of the Act robbing away the right of the court from considering the petition earlier than six months.”

3) In the case of Ashok Hurra v Rupa Ashok, it was held that “in exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.”

4) Therefore, the courts have been inclined more towards waiving off this period if the circumstance of the case demands so and where there is no chance of reconciliation between the parties. Also, Supreme Court by way of its extraordinary powers as provided under Article 142 of the Indian Constitution can grant divorce without waiting for 6 months if it is satisfied that the marriage is irretrievably broken down. However, this power is restricted only to Supreme Court.

5) There is still uncertainty whether High Courts and Family Courts have to mandatorily wait for a period of 6 months. But as it is evident from many cases where there is no possibility of reconciliation between the parties and the marriage has been broken down irretrievably, the courts should follow the spirit of law more than the formal requirements of the section.

6) Conciliation period of six months cannot ordinarily be waived to get divorce decree whereas the Apex Court has got the extraordinary power to grant relaxation in such cases by invoking the doctrine of irretrievable breakdown of marriage.  It all depends upon the facts of the case.