Is One-Year Separation Mandatory For Mutual Divorce?

The concept of mutual divorce under the Hindu Marriage Act, of 1955, and the Special Marriage Act, of 1954, governs such dissolution in India. To dissolve this marriage amicably, both the husbands and wives must consent to it. The couple usually can live separately for at least a year before approaching the court for dissolution. However, per the Supreme Court judgment of 2020 made in Amardeep Singh vs. Harveen Kaur, this period could be exempt in extraordinary circumstances if reconciliation was impossible. The landmark judgment is flexible, but the one-year separation remains a general guideline. 

What is mutual divorce?

Mutual divorce is the legal process in India by which both parties in the marriage agree to the dissolution of their marriage. The provision of this Act permits the couple to seek divorce through a petition in the court if they have not lived together for the last – year and have agreed about their children’s custody and share maintenance, and property. The process generally seeks permission from the court by presenting a joint application in the family court, undergoing counseling as may be require, and then finally getting a decree for divorce after a waiting period of six months, as per the rule.

Process of Filing for Mutual Divorce

The process involves two motions:

• First Motion: The grounds for divorce include that both partners intend to file a joint complaint that they have been living separately for the past year and wish to end the marriage. Both parties give their points and the Court gives the first motion.
• Cooling-off Period: After the first motion there is a mandatory six-month waiting period in which the parties may change their minds. The Apex Court of India has held that this period can be set aside if there is no scope for reconciliation and the marriage has reach a breaking point.
• Second Motion: After the cooling-off period (or waiver), the couple shall file the second motion. The case is review by the court and if they are sate then it issues the divorce decree.

Procedures And Timelines

The HMA offers a cooling-off/waiting period of not less than 6 months from the presentation of the divorce petition to allow for opportunities for a form of compromise and reunion. If the petition is not withdrawn after six months and before eighteen months from the date of presentation of the petition, and if the court deems it appropriate the court after hearing the parties and making such inquiry or inquiries as may be necessary may pass a decree of divorce and declare the marriage dissolve.

According to the HMA, the Special Marriage Act, 1954 (SMA) also provides that mutual consent divorce can be sought if the parties. This may be based on the circumstances where the parties have not been cohabiting for one year or more, have been unable to do so and the couple entirely agree to the dissolution of the marriage. Under the SMA, a cooling-off period of 6 months has been also give.

What is the cooling-off period?

As for the cooling-off period, it is give in HMA, and the purpose of the legislature is to leave the couple at least 6 months to think about the decision again and, in case, to bring the marriage back to life.

Can the cooling-off period be waive?

A Constitution Bench delivered a unanimous judgment in Shilpa Sailesh v Varun Sreenivasan that it can give a direct divorce on account of the ‘irretrievable breakdown of marriage’ cooling-off period can waived under Article 142 of the Constitution.

The courts have also as mandate by the section stated that the object of section 13-B is to allow the parties to bring a marriage to an end by mutual agreement if there is no chance of the marriage being save and to allow the party to start a case without wasting time.

This is so because the cooling-off period is to ensure that there is no hope of their coming back together. The SC has held that the 6 months period is not mandatory, and it would be within the discretion of the court to set it aside.

However, there are situations when every effort must be make to save a marriage, if there are no possibilities for a reunion then the court can waive the cooling period.  

Thus, the courts may discharge the cooling-off period depending on the state of affairs that prevails at that particular time. Such cases include instances where:

• The marriage has irretrievably broken down
• Parties have been fighting/litigating for a long time and there is no chance of reconciliation;
• Parties have already settled the issues through mediation, or any other reason which the court thinks fit. 

Conclusion

Divorce in India is commonly practice by couples. If couples no longer want to live together, a mutual divorce is the best option to end the marriage. One-year separation is not mandatory in cases where there is no hope of continuing the marriage. In a consensual divorce, the couples end breaking their relationship on mutual consent. 

Though every relationship in a marriage is distinct, this cooling-off period will give a new viewpoint in the context of legislation in consensual divorce regarding its positive impacts on society. In society, after a marriage comes to an end, we only think about how the children are suffering there, but sometimes breaking off the broken relationship and continuing to live with dignity has much more importance in somebody’s life. 

Divorce with mutual consent is the most effective way of marriage dissolution keeping in mind as well as the future consequences, both partners break out their marriage with a hello to new relationships as well as friends.

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