Couples are so eager to get married but are not ready to accept duties and responsibilities. The problem starts from here.

Marriage is the foundation of a healthy society. A fractured family gives a fractured and weak society. It gives an insecure future to the nation.

Families spend lakhs and crores on the wedding with branded dresses, pre-wedding shoots, food, and ornaments but don’t focus on the spiritual and social aspects of marriage. So once the film of a wedding is over, couples enter the world of reality and find it difficult to manage their relationship with each other and with other family members.

From divorce they give an insecure future to their kid if any, and to themselves. Their family members too. As laws in India are such people avoid staying together in fear of criminal prosecution, which is evidently misused in the majority of cases on advice to get divorce and alimony. As per data compiled by the National Crime Records Bureau (NCRB) in the report Crime in India 2020 about 5% of the cases under Section 498A were found to be false.

The outcome is couples prefer to leave the country and settle abroad and seniors land in old age homes.

These are serious dangers to society.

So, should divorce by Mutual Consent be instant? Should six months cooling period be waived? If Yes,  on what terms? If No, then why?

The issue involved:

A Constitution Bench of the Supreme Court will start hearing on 28th September,  to consider the extent of its powers under Article 142 of the Constitution of India, 1950, to dissolve the marriage.

The 5-Judge Bench headed by Justice S.K. Kaul and comprising Justices Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari was of the opinion that the real issue is the exercise of power under Article 142 when there is an irretrievable breakdown of marriage, but one party is not consenting to divorce. Shilpa Shailesh vs Varun Sreenivasan

The Constitution Bench reference originates from a Transfer petition, wherein pursuant to the settlement, the parties had sought appropriate order of the Court to dissolve their marriage, and the same was granted by the Apex Court on the following grounds –

  1. there has been an irretrievable breakdown of the marriage between the parties;
  2. the parties are consenting to divorce;
  3. requiring the parties to go to the jurisdictional family court to invoke the provisions of the Hindu Marriage Act, 1955 to seek a decree of divorce would be a lengthy process and that, the Family Courts in the country are already burdened with a huge volume of similar litigation.


Man is a social animal. He cannot live in isolation. To carry forward the human race a sacred institution is created by the name of marriage to have progeny. Who will continue the family tradition, language, dialect, culture, food habits, etcetera.

In Hindus, marriage is a sacred institution and not contractual. It carries the sanctity of an institution namely marriage. What is important is to carry forward the family legacy too. Divorce was an alien concept. Family members would never encourage or support. But in the last decade or so divorce is very normal.

The reason is inter-caste marriage. Independent thinking and the young generation focus more on careers rather than relationships. Educating girls was for a better society, but somewhere it has failed. May be many other circumstances like economic conditions, survival, housing loans, and better education for own children.

Hindu Joint Family was a good concept. But law enforcement under Section 498A, domestic violence, and dowry laws were such that people preferred to live alone with me and mine. Unmarried girls of the family of in-laws were also targeted or were living with married brothers with hanging swords of Section 498A. A worst painted character even by Hindi Cinema evil sisters-in-law and mothers-in-law. While not ruling out such an evil character’s presence, innocents also suffered. This also spoiled the life of an unmarried daughter, as her prospects to settle down in life became challenging.

In the current world evil is a phone. Mother controls daughter’s life over the phone.

Well, there are cases where the marriage lasted only for a month or week, but the alimony paid was huge to avoid criminal prosecution. So, what is sacred has become commercial and boys avoid entering matrimonial ties. A beautiful relationship that should bloom and spread love has become burdensome.

I humbly submit to the constitutional bench to consider these aspects in the backdrop of a hearing under Article 142 of the Constitution of India. Because marriage is the nuclear spectrum of society, and the future of the nation is nurtured in the lap of the mother.

With brief facts let us move on to Article 142 of the Constitution.

Article 142 in The Constitution of India 1949

  1. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.


Under Article 142 (1) power to exercise jurisdiction is with Supreme Court, which may be delegated.

In case of mutual divorce, a cooling period of 6 months is provided after the filing of the divorce petition

Now let us see the provision

Section 13B in The Hindu Marriage Act, 1955

[ 13B Divorce by mutual consent.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

Case Laws

Why cooling period?

(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.

(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

Judgments in favor of the waiver of the cooling period: ( there are several but for readers’ convenience few are discussed)

Harpit Singh Anand v. State of West Bengal reported in (2004) 10 SCC 505. In this case, in almost similar circumstances, Supreme Court in order to put a quietus to all litigations between the parties and not to leave any room for future litigation and on the request of the said parties, exercising the power vested under Article 142 of the Constitution, dissolved the marriage and granted a decree of divorce by mutual consent.

In the case of Kanchan Devi v. Promod Kumar Mittan & Another reported in (1996) 8 SCC 90, where the marriage of the parties was irretrievably broken down, Supreme Court exercised the power under Article 142 of the Constitution of India

In the case of Ashok Hurra v. Rupa Bipin Zaveri etc. reported in (1997) 4 SCC 226, Supreme Court while dealing with a matrimonial matter quoted a few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act, 1955  “Irretrievable Breakdown of Marriage”  dated 7.4.1978. We deem it appropriate to reproduce some excerpts from the said report as under:

“Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce.

* * * The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offense or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

* * * Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage –“breakdown”- and if it continues for a fairly long period, it would indicate destruction of the essence of marriage  “irretrievable breakdown”.”

* * * Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, dragging the legal tie acts as cruelty to the spouse and gives rise to crime and even abuse of religion to obtain the annulment of marriage.

Now what is irretrievable marriage is a factual aspect that depends upon the facts and circumstances of each case. In any event, mutual divorce cannot be by way of a right in the ordinary course. In such a case, it will be a pitfall and may be used by parties to exploit financials in the bargain of settlement.

Concluding Remarks:

As this issue is before the Constitution Bench even if the cooling period of six months is waived, there would be stricto sensu terms and conditions and guidelines will be framed.

Arrange vs Love Marriage

Data shows as under :

A 2013 IPSOS survey found that 74% of young Indians (18-35 years old) prefer an arranged marriage over love marriage. According to a Bombay High Court hearing, divorces are higher in love marriages as compared to arranged marriages, in India. It is also a fact that India has a very low divorce rate of only 1.1% when compared to other countries in the world.

Love in air …. ?

Shruti Desai

22nd September,2022