THE DILEMMA OF THE “COOLING-OFF PERIOD” IN A MUTUALLY CONSENSUAL DIVORCE THROUGH VIDEO CONFERENCING

This article has been authored by Himeesha Dhiliwal, a third year student at Jindal Global Law School.

Introduction

Divorce is a label not favoured or ecstatically acknowledged in the Indian society. Marriage, according to Hindu mythology, is reckoned as a sacred institution with prodigious social relevance. However, with cultural and social progression, this institution has also transformed, and indubitably, marriage is not merely ‘reciprocal possession’ anymore. In numerous cases, marriages fall flat for no fault of one party but as a result of outgrown love or dissonance between the couple, further leading to a divorce. Divorce is the process of termination or dissolution of a marriage between two adults, which was solemnized under a distinct personal law or Special Marriage Act, 1954.

In India, divorce with mutual consent is the most convenient and uncomplicated way of ceasing marriage. A mutually consenting couple can file a joint divorce petition in a Court having the fitting jurisdiction to grant a divorce decree. With a divorce petition filed, formalities relating to the amount of maintenance/alimony, custody of the child/children, and the apportionment of assets co-owned by the couple needs to be mutually settled in addition to the completion of at least one year from the date of marriage. When a divorce petition is filed, a “Cooling-Off Period” of 6 months is granted to the divorcing spouses to muse over their decision. However, in 2017 the Honourable Supreme Court of India passed a landmark judgment in the case of Amardeep Singh vs. Harveen Kaur regarding the waiver of the cooling-off period in a specific mutually-consented divorce proceeding while making a reference to the conduction of proceedings via video-conferencing.

Background

On 16th January, 1994, Amardeep Singh (husband) and Harveen Kaur (wife), the divorcing couple, got married. During their course of the marriage, they had two children. The couple eventually started having disagreements and clashes on various matters. Therefore, in 2008, they started living disjointedly. The disputes were severe enough for them to have filed civil and criminal suits against one another. Amardeep accused the wife of adultery while Harveen accused him of domestic violence. Harveen, under section 125 of the Criminal Procedural Code, filed a maintenance petition and was awarded interim maintenance of Rs. 5000 and a rent allowance of Rs. 2500 by the Class-I Judicial Magistrate.

In April 2017, the couple decided to end their dispute by filing a mutual consent divorce petition. The Tis Hazari Court granted Harveen Rs. 2.75 crores as permanent alimony and husband the children’s custody. Having satisfied the conditions and formalities, the couple at their first motion for divorce requested the Court to waive the ‘Cooling-off Period’ since they had been living separately for over eight years, and the possibility of reunification was nil. With the Court rejecting their plea for a waiver, the divorcing couple through a civil application moved to the Supreme Court since, in its previous judgments, had sometimes relaxed the Cooling-off Period under Article 142 of the Constitution.

The Supreme Court held that the power vested in the Court under Article 142 of the Constitution was practiced in the past, waving of the Cooling-off Period when it is revealed that the marriage was “completely unworkable, emotionally dead, beyond salvage and broken down irretrievably” and would further cause misery and anguish. In Amardeep Singh vs. Harveen Kaur, it was held that the provision of the Hindu Marriage Act requiring the Cooling-off Period is not mandatory but only directory. It also held that an application for waving off the Cooling-off period could be made as early as one week from the date of filing the divorce petition. Besides waiver, it mentions about conduction of such proceedings via video-conferencing.

Analysis

Before dwelling upon the issues addressed in this case, it is necessary to briefly learn about the relevant statutory provisions, Section 13 B and 14 of Hindu Marriage Act, 1955(HMA), and Article 142 of the Constitution of India. Section 13 B was inserted in the HMA in 1976 to introduce mutual-consent divorce, which seeks for a total of 18 months before a decree for divorce can be passed. Under Section 13 B (1), a divorce petition can be moved by a couple following a judicial separation of one year. This may be followed by another six months of a waiting period under Section 13 B (2) for getting a decree. Section 14 mentions that no petition for divorce can be filed within one year of marriage. Lastly, Article 142 of the Constitution gives the power to the Supreme Court to pass order/decree for rendering justice in any cause or matter pending before it.

The Supreme Court in Nikhil Kumar vs. Rupali Kumar waived the statutory cooling-off period and thereby dissolving the marriage under Article 142. In another judgment, namely Poonam vs. Sumit Tanwar, the Supreme Court held that the power under Article 142 could be exercised when the Court believes that the marriage has been irreversibly ended and furtherance of the divorce proceedings would contribute to building distress and agony. But in Manish Goel vs. Rohini Goel, the apex Court held that the statutory period of six months for the second motion under Section 13B could not be waived under Article 142.

In Amardeep Singh vs. Harveen Kaur (Amardeep Singh case), with the reasoning by the judges and reliance on the precedents, the Court considered the contentions for/against the waiver of the Cooling-off Period. The Supreme Court, in the present case, held that it has no discretionary powers to override explicit provisions of statues. However, Section 13 B of HMA is not mandatory but only directory. The Supreme Court held that the Family Courts could waive the cooling-off period if certain conditions are fulfilled. The parties must have completed the statutory period under Section 13 B (1) and 13 B (2) before the first motion of the proceedings, that all efforts for mediation and conciliation to reunite the parties have failed, that the parties have genuinely settled their differences, including regarding alimony, child custody, etc. and that the waiting period would only prolong their agony. It also mentioned that the application for a waiver could be submitted as early as one week, giving reasons for the prayer of waiver after the filing of the divorce petition. Therefore, Court’s this decision leaves Family Courts with the power of discretion to determine the applicability of relaxing the cooling-off period giving due regards to the context, subject matter, language, and the object of the provision to determine whether the provision is a directory or mandatory. This judgment could lead to devastating consequences with people wanting to find loopholes to their benefit, this decision of the Court can lead to ‘motion to vacate premises’ to obtain revenge by either party.

Interestingly, the Amardeep Singh’s case also commented on the usage of video-conferencing to conduct divorce proceedings and permit genuine representation of the parties through close relations, where the parties are unable to appear in person for any just and valid reason as may satisfy the Court. However, it was not an issue faced in this case. The Hon’ble Supreme Court of India in Santhini vs. Vijaya Venkatesh held that under Section 11 of the Family Courts Act, 1984, video-conferencing is impermissible in marital disputes or transfer petitions. The judgment was based on the finding that video conferencing may harm the settlement process since an emotional bond cannot be established over a virtual meeting, although the Court may allow a failure to settle. This facility for its application needed wilful consent from both the parties and demanded the Court’s satisfaction that resolution/settlement was not possible. With reflections on video-conferencing in Amardeep Singh case, the conditions set out in Santhini’s case would follow.

During the enactment of the Hindu Marriage Act, 1955, modern technologies such as video-conferencing were a far-fetched thought. With recent judgments and the outbreak of COVID-19 forcing a move towards digitalization, it was overwhelming for the Indian Courts to recognize and adapt to video-conferencing as a tool for dispute resolution. Nevertheless, a more significant impediment was the deficiency of the facilities in the Indian courts. Therefore, with improved infrastructure this facility will help dispose of urgent family matters speedily and not increase the existent burden of the Courts.

Conclusion

Divorce is an equally important part of society as marriage. Since all marriages are not sustainable, ending them is the best possible damage control solution. Divorce by Mutual-consent was a recent addition to the Indian jurisprudence of divorce and a fairly integral one. Earlier, Indians resorted to the time-consuming and expensive method of ground-based matrimonial litigation, which did no right but rather induced animosity between the parties and involved many mudslingings.

While India took reasonably long to include the concept of ‘consent’ in most personal laws, ‘mutual consent’ runs as a globally accepted principle. With the acceptance of global ideologies, personal laws will also continue to evolve. In the cases addressed so far, it has been observed that the Court has modified procedures catering to specific situations. The introduction of the concept of video-conferencing of divorce proceedings and the relaxing of the Cooling-off Period in the Amardeep Singh case was certainly a step towards the easier disposal of cases in family Courts across India. Catering to the progressing yet challenging times, the transition to video-conferencing was a step towards shredding as many cons of such evolution.