Lawyers, counsellors positive about SC verdict on divorce

Pranita Roy
Wednesday, 27 September 2017

Adesh Kumar Goyal and Justice UU Lalit, in its order, said that “we are in the view that the period mentioned in Section 13B (2) of Hindu Marriage Act is not mandatory but directory. It will be open to the court to exercise its discretion in the backdrop of facts and circumstances of each case.”

PUNE: The recent judgement passed by the Supreme Court (SC) on waiving the cooling-off period in cases of mutual consent for divorce has received a positive response from lawyers and counsellors in the city. 

The SC judgement was passed during the hearing of a plea filed by an estranged couple, who had sought a waiver of the six-month cooling-off period on the grounds that they have been living separately for eight years and there was no possibility of their reunion. 

A bench of Justice Adesh Kumar Goyal and Justice UU Lalit, in its order, said that “we are in the view that the period mentioned in Section 13B (2) of Hindu Marriage Act is not mandatory but directory. It will be open to the court to exercise its discretion in the backdrop of facts and circumstances of each case.” 

The apex court said in conducting such proceedings, the trial court “can also use the medium of video conferencing and permit genuine representation of the parties through close relations, such as parents or siblings, where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice”.

City counsellors seemed sceptical about relaxing the six-month cooling-off period, which gave couples time to reconcile and reconsider their decision. 

“There have been cases in the past, wherein couples who have mutually sought divorce regret their decision during the counselling period stating that it was an impulsive decision. Either of the parties wants to rework on their marriage, in such cases cooling-off period worked great. Waiving this period gives a slim chance to couples for a second thought,” said Smita Joshi, marriage counsellor at the Family Court. 

However, the judgment proves to be a boon for those who have been fighting their divorce cases, including domestic violence and other litigation in court for years. 

“As the parties have already tried methods of reconciliation and have agreed upon all pertinent issues relating to custody and alimony, it will help shorten the span of endless agony. There is no point in prolonging the suffering between two warring parties, especially in family cases. If they choose to go their ways, the law should permit them to do so. Psychologically also, there will be mental relief. The parties will be able to rehabilitate sooner,” said Advocate Lalit Bhandari. 

Lawyers said common reasons, in most cases of mutual consent, are incompatibility, ego-clashes, financial independence etc. 

“The nature of divorce has changed over the years. Initially, most of the divorce cases highlighted the reason to be harassment. Later, it changed to security and monetary interest. Now, non-compatibility is a major reason. Unrealistic expectations of the parties have augmented the stress levels. Impatience and intolerance are also key reasons,” said Advocate Abhay Apte, a lawyer at Family Court. 

“These days, couples, especially women, have an educated background and are aware of their rights, unlike earlier, when it was more about adjustments. Now, no one is ready to compromise in any situation,” said Advocate Supriya Kothari. 

They stated that this will help the courts as the unnecessary paperwork and hearings will be reduced. The matter can be resolved at the earliest and will help to clear pending cases. 

The judgment has mentioned prerequisite conditions for instant relief of divorce procedure. 

The couple has to live separately for 18 months, after which they can file their first motion of divorce. 

The waiver application can be filed one week after the first motion giving reasons for the prayer for the waiver. 

NUMBER OF PENDING CASES IN COURT
According to statistics, over 5,000 divorce cases were pending in 2012 in the family court. The number decreased in 2013. Over 4,200 divorce cases were registered and approximately 4,000 cases were pending. In 2014, out of 4,300 registered cases, over 4,000 were pending. In 2015, 3,800 were pending against 4,000 registered cases. While in 2016, pending cases came down to 3,900 against 4,000 registered cases. A total of around 30,000 cases are still pending in court.

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