Minimum separation Period For Filing Divorce In India Under Hindu Marriage Act 1955

In India the concept of marriage is divine. It is believed that marriages are made in heaven that reflects the belief that marriages are divinely ordained, suggesting that the union of two individuals is pre-destined and guided by a higher power, this saying often evokes a sense of trust and love. While many cherish the idea that marriages are preordained, others believe that successful marriages are a result of mutual effort, understanding, and compromise rather than fate alone.

With changing time and society norms , thoughts and beliefs towards sustaining the  marriage and concept towards dissolution of marriage is also changing. Now couples don’t hesitate to file divorce if they find that they are not compatible with each other and  feel unable to continue their relationship. Even concept of parents are also changing and they do not hesitate to support the decision of divorce taken by  their children

Divorce is a legal end of the marriage. The divorce laws in India are also modified as per the needs of the time. The courts make rules to settle divorce cases and to provide justice to both parties. This article will guide you in understanding the changes in new divorce rules and minimum separation period to file divorce after marriage 

Separation Period Under Hindu Marriage Act, 1955

The Hindu Marriage Act of 1955, which governs marriages and divorces among Hindus, Buddhists, Jains, and Sikhs, provides for a mandatory separation period in  cases of divorce.

1. Divorce By Mutual Consent

Separation Period under Section 13(B) of Hindu Marriage Act : 

Under Section 13(B) of the Hindu Marriage Act, 1955, couples can file for divorce with mutual consent, provided they have been living separately for at least one year. The law defines “living separately” as not living as husband and wife, which can include physical separation or even living under the same roof but without cohabitation.

Process of Divorce with Mutual consent 

First Motion: The divorce process begins with the filing of a joint petition by couples , stating that they have been living separately for one year or more and that they have mutually decided to dissolve their marriage.

Cooling-off Period: After filing of the first motion petition ,  the Court imposes a six-month “cooling-off” period. This period is intended to allow the couple to reconsider their decision and explore the possibility of reconciliation. However, in recent Judgements the judiciary has relaxed the 06 month cooling-off period, where the Court has discretionary powers to waive it in cases of irretrievable breakdown of marriage.  

Second Motion and Final Decree: After the six months cooling off period or after waiving off the cooling off period , couple appear before the Court to confirm their intention to divorce and go through a mediation process. The mediator, after consulting to both the parties , prepares a mediation report and submits it to the Court. If the Court is satisfied that the marriage is irretrievably broken, it will grant the divorce decree.

In a Land Mark Judgement in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746: The Supreme Court ruled that the six-month cooling-off period under Section 13B(2) of the Hindu Marriage Act is not mandatory and can be waived in certain circumstances. The Court held that if the marriage has irretrievably broken down and there is no possibility of reconciliation, the cooling-off period can be waived, allowing for a quicker divorce process.   

2. Contested Divorce  

Section 13(1) : Divorce on Specific Grounds  

Section 13(1) of the Hindu Marriage Act provides for divorce on specific grounds, in which either party initiate the divorce proceedings on various grounds  such as adultery, cruelty, desertion, conversion, renunciation of the world, not heard of for seven years, or more contagious venereal disease and mental disorder. The minimum period of separation required , varies depending on the grounds for divorce for Example In the case of divorce based on desertion, a minimum separation period of two years is required. In the case of applying a ground of ‘not heard of’ a minimum period of 7 years is required, there should not be any knowledge on the whereabouts of the respondent by those who naturally would have if they had been alive.  

Process of Contested Divorce

Filing the Petition: The aggrieved spouse can file for divorce if their partner has deserted them for a continuous period of at least two years and  seven years or more without hearing from the respondent.

Additionally, as per Section 14 of the Hindu Marriage Act, 1955 court may refuse to entertain a divorce petition filed within the first year of marriage unless the case is one of exceptional hardship to the petitioner or of exceptional depravity on part of the respondent.

Bipinchandra Jaisinghbhai Shah v. Prabhavati (1956) AIR 176: In this case, the Supreme Court laid down the definition of desertion as “the permanent forsaking and abandonment of one spouse by the other without the other’s consent and reasonable cause.” The Court emphasized that the desertion must be for a continuous period of two years before filing the divorce petition.

The Role of the Separation Period in Divorce

The separation period in divorce proceedings serves as a crucial buffer to prevent impulsive decisions and to encourage reconciliation. Keeping in mind the sanctity of institution of marriage , Mediation is also made an imperative part of divorce proceedings . It reflects the Indian legal system’s emphasis to exhaust all possibilities of saving a marriage before dissolving it . However, the law also recognizes situations where reconciliation is impossible, and in such cases, the courts have the discretion to waive off  the separation period to expedite the divorce process.

It is advisable to seek the advice of an advocate to navigate the complexities of divorce process  and to ensure that all legal requirements are met.

Frequently Asked Questions 

1. How long does it take for mutual divorce?

The time required for a mutual divorce varies depending on two key factors: the duration of separation and the settlement of issues between the spouses. Usually it can be filled after one year of separation and six month cooling off period is granted by court after first motion . 

It’s important to note that the duration of 06 months can be waved off  based on the unique circumstances where marriage is  irretrievably broken down and there is no possibility of reconciliation 

2. Can mutual divorce be done within 6 months? Can it be done within 2-3 months or in 15 days ?

If the Hon’ble Judge waives off the six-month waiting period, a mutual divorce can be completed within 15 days . However, if the waiver is not granted, the divorce cannot be finalized before the completion of six months. 

3. What is the new rule of mutual divorce?

In a land mark judgement in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746: The Supreme Court ruled that the six-month cooling-off period under Section 13B(2) of the Hindu Marriage Act is not mandatory and can be waived in certain circumstances. The Court held that if the marriage has irretrievably broken down and there is no possibility of reconciliation, the cooling-off period can be waived, allowing for a quicker divorce process.    

4. Is One-year separation mandatory for mutual divorce?

Generally, yes, one-year separation is mandatory for filing a mutual divorce case. However, the court has the discretion to waive off this period in exceptional circumstances. If the court does not consider your case as an exception, you will need to wait for the completion of one year of separation to proceed with the first motion.

5. What does “living separately” mean in this context?

According to the Hon’ble Supreme Court of India’s judgment in ‘ Smt Sureshta Devi Vs Om Prakash ’ “living separately” implies not living as husband and wife. The physical location of the parties is not the determining factor. They may live under the same roof due to circumstances while not fulfilling marital obligations.

The essential requirement is that they have no desire to perform marital duties and have been living separately for at least one year preceding the filing of the petition.

6. Can a mutual divorce be filed immediately after marriage?

As a general rule, a mutual divorce case cannot be filed immediately after marriage. Typically, you must wait for at least one year from the date of marriage to proceed with the first motion. However, exceptions can be made in certain circumstances, as determined by the court.

7. Can I marry after filing a mutual divorce?

No, you cannot remarry only after filing a mutual divorce case. You can only enter into a new marriage once the mutual divorce is granted by the court.

8. Can I marry immediately after the mutual divorce is granted?

Yes, you can marry immediately after the mutual divorce is granted. Unlike other divorce cases, mutual divorce does not have a window for appeal, allowing you to start on a new marital journey without delay.

Conclusion

In India, where marriage is often viewed as a sacred union, evolving divorce laws reflect changing societal norms and the growing emphasis on individual choice. The Hindu Marriage Act’s provisions, such as the separation period and mutual consent, balance the preservation of marital sanctity with recognizing irretrievable breakdowns. As these legal frameworks adapt, the role of legal crusaders becomes vital in guiding individuals through the complexities of divorce, ensuring their rights are upheld while fostering fair resolutions. With expert legal advice, navigating the divorce process becomes more manageable, helping individuals transition smoothly during this challenging time. Seeking the right guidance is crucial for achieving a just and equitable outcome.