Does divorce need a cooling off period?

Two, the top court also held that family courts can waive off the mandatory cooling/waiting period of six to 18 months required under marital laws for divorce through mutual consent, also referred to as no-fault divorces. In the latter case, the couple still has to undergo the stipulated separation period as per their governing law.

To be sure, the family courts, which grant mutual consent divorce, were already allowed by a two-judge bench of the Supreme Court in 2017, in the case of Amardeep Singh Vs. Harveen, to waive off the cooling off period provided certain conditions were fulfilled. The Constitution bench of five judges has reinforced that judgment.

Let’s take a step back and understand this better. There are two kinds of divorces — divorce by mutual consent, and divorce that is contested. In the first, the parties agree on terms and conditions and apply for divorce to the family court after undergoing a separation period of between 12 or 24 months depending on their governing law. Following this, they file the first motion petition (application) before a family court. Thereafter, they were required to file the second motion petition after a cooling off period of 6 to 18 months. However, with the new judgment, they can now file the second motion petition a week after the court has accepted their first motion petition.

What is a contested divorce?

A contested divorce is one where the parties do not agree to any terms and conditions and file for divorce in the family court on the grounds such as cruelty, adultery, abandonment, change of religion among others, provided under the divorce laws governing the parties. As per the new judgment, any party can now approach the SC on grounds of irretrievable breakdown of marriage, which if they prove to the court, they can get the divorce they seek.

Typically, the family court sends contested divorce couples to compulsory mediation so that the parties can get a chance to resolve their issues amicably and draw up an agreement to live together or get divorced by way of mutual consent. If this approach fails, the parties return to the court, which then passes its judgment on merits. A contested divorce usually takes many years.

No doubt, the top court’s judgment will leave a mark in the lives of all the people of the country. But it begs the question: what exactly does the waiting period serve to do?

Is cooling off needed?

Couples who wish to divorce are subject to the conditions laid down by law, including having to go through a cooling off period to make sure that their decision has not been made in haste.

The Hindu Marriage Act (1956) as well as the Special Marriage Act (1954) stipulate a period of 12 months of separation before filing of first motion (petition for divorce), while the Divorce Act (1869), which applies to those of Christian faith, stipulates 24 months of separation. The cooling off period is an additional six to eighteen months; if the couple doesn’t go back to court after filing of first motion, then the petition stands null and void. This ends up keeping the couple together much longer than either party would wish for.

As a family lawyer of 21 years, I have been witness to many such situations where this time often ends in acrimony. Conversely, I have also witnessed couples taking advantage of this time to manage their emotions and do what’s best for themselves, and if there’s children involved, for the larger family too.

The mandatory cooling off period of six to eighteen months is a very important aspect of family law considering that it gives parties time to think about their decision to end their marriage, which is considered to be sacred and sacrosanct under the Indian family law. It provides time and space to the parties to rethink, evaluate and understand the effects of divorce for a certain period before proceeding to file the second motion.

When my client Jennifer approached me in 2012 to file a mutual consent divorce, she and her husband, Donavan, both agreed on the terms and conditions. They had a son about five years of age. Jennifer and Donavan, both residents of Delhi at the time, agreed that they would provide a congenial environment for the child to meet the father. However, after filing the first motion petition, when Jennifer and Donavan were in the cooling off period, they realised that in another six months, they would get divorced and it struck them how well they were communicating after the first motion had been filed. They had decided to live together and work on their marriage. They never came back to me after that.

It is not necessary that the cooling off period always results in cancelling the divorce but it definitely adds more clarity to the decision to seek divorce, as it provides a compulsory period where the couple lives like a divorced one.

In the case of Aarti, another client, who filed for the First Motion seeking divorce by way of mutual consent, the cooling off period reinforced her decision. At first, she thought she was influenced by her family’s decision to leave Sunil. The two have a daughter who was around 12 years old at the time, and Sunil had the right to meet her every weekend. During the cooling off period of six months, Sunil did not come to meet the daughter even once. This provided Aarti the clarity she needed as she realised that she had indeed made the right decision regarding her marriage.

The only way a waiver of the mandatory cooling off period works is in cases where the period of separation has already been long enough. Another client, Suditi, left her Army husband’s household, and filed for maintenance. This led to an extremely bitter legal battle between the two; Suditi accused her husband of violence and abuse. The two finally agreed to end their marriage by way of mutual consent after fighting for three years. The waiver of cooling period in that case was granted and a divorce decree was drawn.

What if there is an irretrievable breakdown?

While the top court’s decision to grant divorce on the grounds of irretrievable breakdown of marriage under Article 142 of the Constitution now allows a person to directly knock on its doors, this doesn’t mean that one can simply file a case and expect to be granted a divorce.

The top court can only come to your rescue if you are able to satisfy it that the marriage has completely broken down and there is no chance of reviving it. There are several other factors that it would need to consider, such as the social status of the parties, ongoing litigations between the parties, orders passed therein, allegations made in the proceedings, education and income and even alimony.

The Judgement of the Hon’ble Supreme Court is a welcome step in cases where it is impossible for both the parties to live together without mental agony, torture or distress. Yet, it is best left to the parties to evaluate if waiting is better for their healing from a failed and broken relationship.

Swaty Singh Malik is an advocate practising in the Delhi High Court and Supreme Court