Divorce By Mutual Consent A Need Of Our

“Divorce is probably of nearly the same date as marriage. I believe, however, that marriage is some weeks the more ancient.”
– Voltaire, French philosopher (1694-1778)

Voltaire gives us a moment to smile even when we are going to discuss the most complicated subject for the couples of now a days.

Divorce not remains the subject of discussion for the west countries only. Now even in India this subject needs much more attention from the individuals, society, courts and legislature.

Till Few years ago, the Marriage remained a sacred subject particularly for the Hindus of which break down was not in the imagination, however now a days the individuals, society, courts and legislature not only think but express boldly that the marriage is subject made by God through religious process however can be broken through court on certain terms favorable, good, equal for all including bride and groom or boy and girl.

However a contested divorce continues to be a prolonged nightmare for the couple. The Government had had set separate family courts and matrimonial cases were taken out of the adversarial setting of civil courts to family courts. This came with an inbuilt counseling and mediation mechanism. But the dynamics of family courts also came inbuilt with huge systemic delays. The notorious staff crunch, for one, whether among judges or stenographers, leads to a massive pendency of cases. This means litigants sometimes wait months just for the next hearing. In Delhi , an average of 70-80 cases are listed for hearing in every court, of which a fraction is substantively heard, and the rest adjourned for various reasons for three months or sometimes six months in this way average contested divorce case take 3 years to 12 years.

Family courts clearly need reforms in procedural practices to make sure cases do not drag on interminably however apart of reforms in procedural practices the couples and individuals in particulars have a thought before going into court to take divorce.

In india this is common that persons files frivolous case including criminal case against each other not for divorce but for revenge as they treat the end of marriage like end of life which is not a correct approach.

In this era when girls and boys are enjoying equals rights in education, earning society etc. the marriage also demands equal approach of treatment whether it is while getting marriage or breaking marriage.

Now it is question of discussion what is equal treatment while breaking the marriage.

The answer is to treat the other person as human being who made wrongs which may be curable or incurable

If the mistakes are curable give an honest approach to cure it, if mistakes are incurable give him or her a good bye and go forward with a better luck ahead.

I believe our culture of forgiveness is remedy to prolonged nightmare for the couple looking divorce for one reason or other.

That is the reason the legislature had also amended the Hindu marriage act and added ground of irrevocable break down of marriage.

And In September 2017 in the matter of Amardeep Singh Vs Harveen Kaur, the Supreme Court waived the six-month ‘waiting period,’ once compulsory for mutual consent divorces under section 13B of Hindu Marriage Act 1955.

It was held that where the court dealing with a matter was satisfied that a case was made out to waive the statutory period under Section 13B(2), it can do so after considering the following:

The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties, is already over before the first motion itself;

All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

The parties have genuinely settled their differences, including alimony, custody of child or any other pending issues between the parties;

and The waiting period will only prolong their agony. 

This was seen as huge progress in a country where getting a divorce can take anything from two to 12 years.

The approach of the judges and councilors has to be changed as well in this way, who instead of treating the marriage a “institution to preserve” the judge, councilor, society, family members, and individual has to see the marriage “a contract made by blessing of God” rather than “a blessing of God” and firstly should try to save the marriage and secondly should try to break the matrimony on equal and harmonious terms.

Then the institution of marriage will remain continue as sacred one.