Last month the Times of India ran an article about a couple who sought a divorce under the Hindu Marriage Act, after a period of mutual separation. Both parties consented to the divorce and had been living apart for a number of years. However, because the Hindu Marriage Act mandated a six month cooling off period, the lower court denied the divorce and ordered a cooling off moratorium for six months pursuant to the Act. Btw, there are different Acts that apply to different religious and cultural groups in India, apparently:
“Indian divorce laws are followed variously depending upon the community to which one belongs. For example, Hindus, Buddhists, Sikhs and Jains usually follow the divorce rules as per the Hindu Marriage Act of 1955. Meanwhile, Christians, Parsi and Muslims each have their own guidelines and laws for divorce, including the Indian Divorce Act of 1869 (Christians), and the Parsi Marriage and Divorce Act of 1936 (Parsi).’
Under the applicable law of the case at bar, a couple can file a mutual consent divorce petition under Section 13B of the Hindu Marriage Act after living separately for a year. The court is required to grant a divorce six months after the petition is presented before it.
Unhappy with the decision, the couple appealed to the Bombay High Court and the judge sided with the couple:
The HC has held that the six-month cooling-off period for a couple who file a joint petition for divorce cannot be insisted on by the family court if the couple has already been living separately for a year and their contested divorce plea has been pending in court for over six months. “Parties who settle their dispute are not required to be penalised for doing so,’’ said Justice Roshan Dalvi.
Obviously, the intentions behind the “cooling off period” is good. But it paves the way to the road to hell for many couples. Why keep people legally bound together for longer than they desire? Are those jurisdictions who favor this notion of a “cooling off period” really that paternalistic that they believe they know better than two consenting adults if a marriage is over or not? Presumably if two people come in seeking a divorce, the marriage has been disintegrating for some time. There is no need for additional cooling off time. Thankfully, Justice Dalvi has a few brain cells in his head and did the right thing here.