Mutual Consent Divorce under Hindu Law: Cooling-Off Period and Withdrawal of Consent:
If consent is withdrawn by either of the parties before the cooling-off period, then the Divorce by Mutual Consent petition is not maintainable.
What is divorce by mutual consent? What is the duration of the cooling-off period in mutual divorce proceedings, and what purpose does it serve? Can either party withdraw their consent for the divorce during the cooling-off period? Can the cooling-off period be waived?
As per section 13-B of the Hindu Marriage Act, 1955, If the parties, i.e. the husband and wife, have been living separately for one year or more, they may agree to mutually dissolve their marriage and approach the Court with a divorce petition on the ground that they have not been able to live together and would like to obtain a divorce by mutual consent. In the case of Subhasree Datta v. Nil, 2008 SCC OnLine Cal 224, The Court held that the cooling-off period is explicitly mandated in the Hindu Marriage Act (HMA),1955, with the legislative intent being to grant couples a minimum of six months to reassess their decision and if possible, to reconcile their differences. In the case of Rajesh R. Nair v. Meera Babu, 2013 SCC OnLine Ker 24486, The Kerala High Court held that The Hindu Marriage Act (HMA) explicitly acknowledges the parties’ right to withdraw their consent granted for the divorce petition.
This right is unconditional, meaning that for any reason whatsoever, if either or both parties decide to withdraw their consent, such withdrawal will align with the statutory provision outlined in Section 13-B(2) of the HMA. In the case of Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746. The Supreme Court has observed that the six-month period is not obligatory, and the Court has the authority to use its discretion and waive the cooling-off period if there is no chance of the parties living together again and there are opportunities for alternative rehabilitation.
AUTHOR:
M Shanthish Kumar, 5th year B.A, LL. B(Hons.), Veltech School of Law, Chennai