MUMBAI: A recent decision of the Bombay high court will now help speed up divorce for couples who wish to end their bitter legal battle through mutual settlement. The HC has held that the six-month cooling-off period for a couple who file a joint petition for divorce cannot be insisted on by the family court if the couple has already been living separately for a year and their contested divorce plea has been pending in court for over six months. “Parties who settle their dispute are not required to be penalised for doing so,’’ said Justice Roshan Dalvi.
The case pertained to a couple married under the Hindu Marriage Act in 2005, who had lived together for a year before separating. The husband then filed for divorce a year later. Both traded charges of cruelty and harassment, but soon agreed to bury the hatchet and withdrew their allegations. In December 2009, they filed consent terms for a mutual divorce plea and sought a waiver of the 6-month period—stipulated under law to enable the couple to reconsider their decision. However the family court judge rejected their request.
With more than three years of separation behind them, the couple, who wished to get on with their separate lives, moved the high court to challenge the family court order. Taking a progressive approach, Justice Roshan Dalvi held that after considering the law and reading the various provisions for grant of divorce “harmoniously’’, the view taken by the family court judge was “erroneous’’.
The HC held that the family court law also empowers the family court to consider alternative modes of reconciliation between couples, including mediation, which could result in couples getting back together or parting ways amicably by mutual consent. If the mediation results in the couple dropping their acrimonious charges and if in the meantime six months have elapsed, then the family court cannot insist on waiting another six months before granting divorce by mutual consent, said Justice Dalvi. “If a petition for divorce filed on various grounds, including allegations of cruelty, has remained pending in court for as long as three years as in this case, the parties require no respite period to reconsider their decision to dissolve a broken marriage in which allegations were first made and later withdrawn on seeing reason,’’ she held.
Under the law, a couple can file a mutual consent divorce petition under Section 13B of the Hindu Marriage Act after living separately for a year. The court is required to grant a divorce six months after the petition is presented before it.