Supreme Court's Huge Order On 6-Month Waiting Period For Divorce

The Supreme Court today held that it can dissolve marriages on the ground of "irretrievable breakdown of marriage" invoking special powers under Article 142. It further held that the mandatory waiting period of six months for divorce through mutual consent can be done away with, subject to conditions.

"We have also laid down factors which can determine when there will be an irretrievable breakdown of marriage," a Constitution Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari, said. The bench has also laid out how to balance out equities, specifically with regard to maintenance, alimony, and the rights of the children.

A court grants a "cooling off" period of six months to a couple seeking a divorce, with the intent to save the marriage. After the end of six months, the couple may decide to reunite or proceed with a divorce. 

However, the top court has said that the period of six months can be dispensed with if certain requirements and conditions are met.

"The time gap is meant to enable the parties to cogitate, analyse and take a deliberated decision. The object of the cooling-off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out. Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant the divorce. The waiver is not to be given on mere asking, but on the court being satisfied beyond doubt that the marriage has shattered beyond repair," it said.

However, the court clarified that a party cannot directly approach the Supreme Court (a right given to citizens under Article 32 of the Constitution of India if they feel that their right has been 'unduly deprived') and seek relief of dissolution of marriage on the ground of irretrievable breakdown of marriage directly from it.

"The reason is that the remedy of a person aggrieved by the decision of the competent judicial forum is to approach the superior tribunal/forum for redressal of his/her grievance," it said.

The original issue referred to the Constitution Bench was whether the mandatory waiting period for divorce by mutual consent, as prescribed under Section 13B of the Hindu Marriage Act, could be waived by the Supreme Court, exercising its vast powers under Article 142, in order to dissolve broken-down marriages between consenting couples without referring them to family courts for protracted judicial proceedings to get the decree of separation. However, during the hearing, the Constitution Bench decided to consider the issue of whether marriages could be dissolved on the ground of irretrievable breakdown.

"Article 142 must be considered in light of the fundamental rights. It should contravene a non-derogable function of the Constitution. Court under the power is empowered to complete justice," the bench said.

Article 142 of the Constitution deals with the enforcement of decrees and orders of the top court to do "complete justice" in any matter pending before it.

The case was referred to a five-judge bench seven years ago by a Division Bench of Justices Shiva Kirti Singh and R Banumathi (both retired) in a transfer petition. After hearing arguments, the Constitution Bench reserved its judgment on September 29, 2022.