6-month wait for divorce a must, says HC

MUMBAI: A quick divorce may not exactly be easy to obtain even if both the husband and wife are willing. In an important judgment, the Bombay High Court has held that the six month “waiting period’’ after filing for divorce by mutual consent under the Hindu Marriage Act is mandatory and can’t be waived by courts. A division bench of Chief Justice Swatanter Kumar and Justice V M Kanade on Friday held that the family courts did not have the power to waive off this requirement. “No prejudice is caused to the parties (husband and wife) by merely waiting for a short period of six months before they take a vital and pertinent decision in regard to their marriage which is a social sacrament coupled with civil rights and obligations and which they had entered upon voluntarily,’’ said the judges. “Impulsive and impatient decisions rarely guide the parties to the logical and correct decision. It is a period during which the parties are expected to ponder and seriously consider their decision to severe the matrimonial ties.’’ The court’s orders came after the principal judge of the family court in Nagpur referred the issue to the HC. The principal judge was confronted with a problem following a divorce petition filed by a Nagpur couple and divergent views on the matter. The couple Tushar and Meenal had got married on May 9, 2006. Due to differences they started living separately from September 2006. A year later on September 11, 2007, the couple filed a petition seeking divorce by mutual consent. They also urged the court to condone the six month waiting period. Under section 13 of the Hindu Marriage Act, a couple who are living separately for more than a year can file a petition for divorce by mutual consent. The section further provides for a minimum waiting period of six months, after which the couple can file a second application for dissolving the marriage. The court remarked that this waiting period is usually for the benefit of the couple so that they can reconsider their decision. “This kind of benefit is founded on a social outlook,’’ said the judges. “If this procedure is condoned at the behest of parties it will amount to denial of the statutory benefit of rethinking. The statutory provision cannot be moulded to suit the convenience of parties.’’ The Act provides for immediate divorce inder section 14 only if the grounds urged are cruelty or hardship. The 44-page judgment was penned by the Chief Justice who reiterated that despite the various provisions of the Act, it was intended to bring couples together. “The legislative policy of the Hindu Marriage Act is to protect the institution of marriage and prevent decay of social values relating to the institution of the family.’’ The Chief Justice also sought to draw upon the origins of marriage in the Hindu society. “From the very commencement of the Rigvedic Age, marriage was a well established institution and the Aryan ideal of marriage was very high. Monogamy was the approved rule though polygamy existed to some extent. It is said that there is no real evidence to the existence of polyandry and matriarchy in the Vedic time,’’ said the judge, who also referred to Manu’s exhortations on honouring women and on the institution of marriage. “The husband receives his wife from the Gods, he must always support her while she is faithful,’’ the judge quoted Manu in the judgment. The judge added, “In Hindu (society), marriage is one of the necessary sanskaras or religious rites. While marriage according to the Hindu law is a sacrament, it is also a civil contract which takes the form of a gift in the Brahma, a sale in the Asura and an agreement in the Gandharva.’’ The judge said that in earlier times under the Hindu law divorce was not allowed. It was only in 1955, following the enactment of the Hindu Marriage Act that the law specifically provided for dissolution of marriage by a decree of divorce.
13 Jun 2008, 0127 hrs IST, Shibu Thomas,TNN


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