DIVORCE UNDER SECTION 13-B HMA 1955

Divorce under section 13-B of HMA is also called mutual consent divorce. Meaning thereby where both parties (Husband and Wife) are ready for Divorce on their mutual terms, their marriage can be dissolved under section 13 B-of HMA 1955.There are two motions in the process of Divorce under section 13-B.First motion can be filed immediately after completion of separation of one year. It means it is the pre-condition for filing of divorce petition under section 13-B of HMA that parties are living separately from each other from last one year and now they have mutually decided to dissolved their marriage on the ground of mutual consent. Generally Court is not denying to allow first motion under section 13-B of HMA if all the legal requirements are fulfilled and their terms of the settlement are not disputed by the parties. The second motion can be filed just after completion of six months in the same manner. The six months statuary period is laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. This was inspired by the thought that forcible perpetuation of status of matrimony between the unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibilities of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every efforts has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court is not powerless in enabling the parties to have a better option and in such situation , court is allowing the second motion petition even before the six months period.

The supreme Court in the case of “ Amardeep Singh Vs.Harveen Kaur SLP(C) No.20184/2017 decided on 12.09.2017 has  laid down certain guidelines to be applied in the cases of mutual consent divorce where parties are seeking to grant divorce by waving of six months statuary period which are as under:-

….Applying the above to the present situation, we are of the view that where the Court dealing with a matter is 

satisfied that a case is made out to waive the statutory period under Section 13B (2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B (2), in addition to the statutory period of one year under Section 13B (1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23  (1) of the Act/ Section of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

 If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

 Since we are of the view that the period mentioned in Section 13 B (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.

 Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also 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.

So as per the guidelines issued by the  Supreme Court in the case of “ Amardeep Singh Vs.Harveen Kaur SLP(C) No.20184/2017 decided on 12.09.2017, the court is allowing  the 2nd motion petition under section 13-B HMA before six months also and waving off the statuary period of six months.