Note
- The court can not presume concurrence if one of the parties doesn’t appear after six months( Smruti Pahariyav. Sanjay Pahariya( 2009) 13 SCC 338).
- The terms of the agreement shouldn’t be against public policy( Hirabai Bharuchav. Pirojshah Bharucha AIR( 32) 1945 Bombay 537).
- The following procedure of divorce is only for Hindus( includes Sikh, Jain, and Budh), Christians( Section 10- A of the Divorce Act, 1869 not living together for two times or further), Parsis( Section 32- B of the Parsi Marriage and Divorce Act, 1936), and people who come under the Special Marriage Act( Section 28 of Special Marriage Act, 1954). For Muslims, the procedure mentioned in Mubara’at under the Shariat Law and Dissolution of Muslim Marriages Act, 1939 is to be followed.
- The remarriage can be done after a lapse of three months from the end of the decree if no appeal has been made.
- The total time taken in granting a divorce from the date of the form of a solicitation can vary from six months to one time but varies on a case to case base.
Is there a cooling-off period?
The cooling-off period is seen as a chance for conciliation to be handed to the parties before granting the decree of mutual divorce process in india. still, under certain circumstances, it’s allowed to be waived off.
- In the interest of justice under Composition 142 of the Constitution of India, when parties have been litigating for a long and a lot of time has formerly lapsed, and also on concluding for collective concurrence divorce a fresh period of six months isn’t advised.( Anil Jainv. Maya Jain, Anjana Kishorev. Puneet Kishore)
- The Supreme Court in Amardeep Singhvi. Harveen Kaur( Civil AppealNo. 11158 of 2017 on September 12, 2017) held that the cooling-off period handed isn’t obligatory but a directory provision and therefore can be waived off from case to case base. The following circumstances were laid down
- The statutory period of six months specified in 13B( 2) in addition to the statutory period of one time under Section 13B( 1) for separation of parties is formerly over before the first stir itself;
- That all sweats for agreement/ concession to reunite the parties have failed and there’s no liability of success in that direction by any farther sweats;
- That the parties have authentically settled their differences including alimony, guardianship of a child or any other pending issues between the parties
- That the staying period will only protract their agony.
- The disclaimer operation can be filed one week after the first stir, giving reasons for the prayer for disclaimer.
- still, the disclaimer of the staying period for the alternate stir will be at the discretion of the concerned Court, If the below conditions are satisfied.
- That as the period mentioned in Section 13B( 2) isn’t obligatory but directory, it’ll be open to the Court to exercise its discretion in the data and circumstances of each case where there’s no possibility of parties continuing cohabitation and there are chances of indispensable recuperation. The Court also stated that similar proceedings can also be conducted through videotape conferencing.
Queries related to concurrence
Is it possible for a party to withdraw concurrence while the solicitation is pending?
The court has a duty to satisfy itself that the concurrence given by the parties continues uninterruptedly till the end of decree. The intermediating period handed gives either party the right to withdraw their concurrence unilaterally following which the court loses its governance to pass the decree.
- However the same can be allowed only if the ensuing conditions are fulfilled
The other party shouldn’t have acted in agreement of the concurrence terms either wholly or incompletely to his/ her detriment and shouldn’t suffer from unrecoverable prejudice if pullout is allowed; and - There should be sufficient cause to allow the same as the person can not have bone ‘s cutlet and eat it too.
Mr.Prakash Alumal Kalandariv.Mrs.Jahnavi Prakash Kalandari( AIR 2011 BOM 119)).
Note
- The court in RajeshR. Nairv. Meera Babu( AIR 2014 Kerala 44) observed that concurrence can also be withdrawn at the stage of inquiry under section 13B( 2) of Hindu Marriage Act, 1955.
- The Supreme Court inSmt. Sureshta Deviv. Om Prakash( 1991 SCR( 1) 274) stated that pullout of concurrence by both the parties isn’t needed. It can be done unilaterally, i.e., by one party.
- Still, as decided in Shikha Bhatiav. Gaurav Bhatia & Ors.( 178( 2011) DLT 128), Avneesh Soodv. Tithi Sood( 2012 SCC Online 2445) it was observed by courts that if any undertaking is given recorded in any legal proceeding/ agreement/ common statement whether within or outside the court, which results in a concurrence decree/ order to mutually do with the other party to file a solicitation under Section 13B( 1) or alternate stir under Section 13B( 2) of the Hindu Marriage Act, 1955, or both can not be withdrawn.
What will be to the other party in case one party withdraws concurrence?
The displeased party can make sure that the court looks into the conditions needed to grant pullout and can also expostulate if any agreement performing in a concurrence decree as stated before exists. still, the primary expedient available is to file under the queried form of divorce.
What if the concurrence is attained by force?
The court has a duty under Section 23( 1)( bb) of the Hindu Marriage Act, 1955 to satisfy itself that in cases of collective concurrence divorce the concurrence has not been attained by fraud, force or overdue influence. The court has to look into the data of the case to determine that the concurrence is free. An appeal is still allowed keeping in mind the possibility that court might overpass in catching on concurrence( Sushmav. Pramod,( 2009 SCCOnl Bom 399)).
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