Thursday, April 25, 2024

Fast-Track Separation

A Gujarat High Court order has waived the mandatory six-month cooling period in granting a divorce. Could it pave the way for quick divorces in other cases too?

By RK Misra 

A Gujarat High Court judgment has given a ray of hope to couples living in disharmony and seeking a quick end to their marriage. The order has waived the mandatory six-month cooling period in granting divorce by mutual consent and allowed a quick end to matters.

The order by Justice RD Kothari recently took cognizance of the fact that a trial court had, in a very short order, rejected an application for divorce only on the ground that it did not have the powers to waive the six-month period.

Taking the facts of the case and the circumstances into cognizance, the high court ruled: “The present petition is allowed. 6 months period for seeking divorce is hereby waived. The order dated 11.12.2015 passed by the trial court is hereby set aside. Rule is made absolute.”

The case before the high court involved Nilamben and Bharatkumar Patel who were married in 2002, but due to irreconcilable differences, decided to separate in 2008. They also obtained the customary divorce on August 18, 2008, the court noted. Thereafter, the parties filed a divorce petition by mutual consent on August 24, 2015, under the Hindu Marriage Act. They then filed for a waiver of the six-month period in October 2015 before a trial court. However, this was rejected by this court as it said it had no powers to do so. Aggrieved, the couple knocked on the doors of the high court.

Granting the waiver, Justice Kothari set aside the order of the trial court, saying that it had rejected the application without considering the facts and circumstances of the case. The high court enumerated these by saying the couple had been residing separately for more than seven years and gave the reasons for the urgency as expressed by the wife. “Besides these circumstances, the trial court could have verified their willingness and urgency and could have satisfied itself,” the high court order said.

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The reasons for the wife’s urgency was that she intended to get married and as her would-be husband was abroad, the passport procedure (which involved change of husband’s name) needed to be completed, preferably by the end of January 2016.

Interestingly, the trial court had cited a judgment by Justice Abhilasha Kumari of the Gujarat High Court in the Jigneshkumar Dilipbhai Patel v/s principal senior civil judge case in rejecting the waiver plea. In this case, Justice Kumari had ruled on November 30, 2013, that the trial court had not considered its applicability and cited principles of law laid down by the Supreme Court in the following judgments—Anil Kumar Jain v. Maya Jain (supra) and Manish Goel v. Rohini Goel (supra).

The SC judgments said that neither civil courts nor the high court can pass orders to curtail the statutory waiting period of six months prescribed under Section 13B(2) of the Act. Except for the Supreme Court, no high court or civil court has the power to grant relief by invoking the doctrine of irretrievable breakdown of marriage, she had stated, as she rejected the petition.

The case before Justice Kumari pertained to a couple, Jigneshkumar and his wife, who were married in 2009 according to Hindu rites and rituals. Unable to adjust, they started living separately from 2011 and filed a divorce petition in October 2013 before the principal civil judge, Kalol, Gandhinagar, under Section 13 of the Hindu Marriage Act, 1955, seeking dissolution of marriage and a decree of divorce. They also filed an application under Section 13B (2) seeking waiving of the statutory six months period for granting divorce.

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The reason cited for seeking a waiver was that the wife had got a student dependent visa on the basis of her marriage and had gone to the UK on it. This would now expire in December 2013 and she needed to apply for an extension of visa before the said date, for which the decree of divorce was needed. The couple was, however, permitted to withdraw the marriage annulment application before the High Court so that it could be filed before the principal civil judge at Kalol. But with the rejection of the plea by the civil judge, the matter was back before the high court which rejected the plea for waiver.

Meanwhile, the ministry of external affairs (MEA) had, in a circular late last month, stipulated that any married Indian—be it in India or abroad—divorced abroad will have to secure an Indian court’s order before applying for changes in the passport. Earlier, an authentication from MEA on a divorce decree granted by a foreign country’s court was enough. But changes became necessary after an increasing number of fraud cases came to light. “Some cases were detected but many were not,” said a senior passport office functionary.

Hina Desai, a councillor, expressed satisfaction with this decision. “Women go through a lot of mental trauma when they are victims of marital fraud. This will help curb them because the divorce will need to be validated in an Indian court.” While she was fine with the six-month cooling period, she strongly advocated safeguards to protect the interests of women.

The ruling comes after two SC judgments had held that courts could not curtail the mandatory waiting period. Lawyers have praised the Gujarat verdict as a humanitarian and positive one.

Nilesh Bhavsar, a lawyer, said the cooling-off period will be helpful in genuine cases of couples seeking a divorce by mutual consent and who are in a hurry. “It prevents needless waste of time and money as it saves people the effort to go to the Supreme Court. The court’s approach is humanitarian and positive.”
Justice Kothari’s judgment could well act as a beacon in other troubled cases too.

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