Why I’m Rejoicing at SC Waiving ‘Cooling Off Period’ for a Couple

How does someone move on when the tag of a dysfunctional marriage is hanging around their necks?

(Photo: iStock)

Indian judiciary is finally waking up to the new demands of a new India.

First, the triple talaaq verdict and now, the waiving of the minimum cooling-off period of six months for granting the decree of divorce sought under mutual consent – Indian judiciary is finally waking up to the new demands of a new India.

As someone who lost time and sleep fighting a divorce case, I applaud this move by the Supreme Court. It is no news that divorce cases have been a point of agony for Indians. The fact that there are thrice as many individuals who identified themselves as ‘separated’ as those who are ‘divorced’ points out that people prefer carrying on their lives separately rather than getting embroiled in the divorce process.

Also Read: 6 Month Cooling Off Period for Hindu Divorces Can be Scrapped: SC

This means that only a fraction of the people end up being in family courts. So, the figure of 0.11% representing the people reported to be divorced actually under-represents the people who have ended their marriages.

Why the Cooling-Off Period Does Not Work

The process may take from less than a year to a decade depending on the nature of conflicts, disagreements between the parties and the discretion of the judges. Ouch! This is the peak of an individual’s life that we are talking about. If both the parties agree, however, they can file a divorce by mutual consent under section 13-B which requires that the couple is living separately at least for a year. Even under this, the court mandates a cooling off period between 6-18 months to avoid hasty and not-thought-through petitions.

This requirement always made me laugh. There is nothing ‘hasty’ when it comes to Indian courts. I feel that an Indian couple might survive a marriage easier than surviving the divorce process itself.

If the gruelling wait in the daunting hallways of family courts cannot deter an individual seeking divorce, then, believe me, no amount of a cooling off period would do it. Many of the cases coming in for divorce are by mutual consent and there is no reason why the couple should waste six more months before getting on with their lives.

So, with this news, one can apply to get a waiver on this cooling period. Meaning, that if a couple has come to an agreement about the dissolution of their marriage, they can request to expedite the process and not wait for an additional six months.

In my conversation with Mr Kabir Dixit, Advocate-on-Record, Supreme Court, he clarified that this is not entirely news. Earlier also, the Supreme Court had the authority to waive this period off, but now even family courts will have the power to do it. He warns though, that this may add an extra step of deliberation on the part of family court judges and that the litigation is more likely to increase – thus diminishing the actual end advantage of this verdict.

What is welcome is the fact that the judiciary has shown clear intent to make lives easier for people.

Of ‘Agli Tareekh’ and the Inability to Move On

I agree that this represents a very small part of the problem. The bigger issue is the endless litigation in divorce cases. The seemingly-endless system of ‘agli tareekh’ often delays the outcome. If one party doesn’t show up because they are abroad or sick, the date can easily be pushed ahead by a month. How does someone move on when the tag of a dysfunctional marriage is hanging around their neck and leaving them reluctantly in the past?

Mr Kabir agrees that the malicious prolonging of cases should be looked into. May I propose, therefore, a system of fast track courts for processing divorce cases?

Put a cap on the number of days any divorce case can run into. Penalise the lawyers the longer a case lingers. Currently, the interests of the couple and the lawyers can be in conflict where longer running cases mean more fees for the lawyers. By ensuring that a case will see an outcome within 1-1.5 years, you will encourage people stuck in dysfunctional marriages to move on. The downside, one might argue, would be hasty dissolutions – but hey, if a person is willing to bear the brunt of divorce, then shouldn’t it be his/her call in the end rather than the courts? The solution might lie in improving the education on relationships rather than forcing people to be in a social construct that doesn’t work.

Society is rapidly changing. The landmark Hindu Code Bill in the mid-1950s gave property rights to women, outlawed polygamy and allowed partners to file for divorce. In 1976, India decided to allow divorce by mutual consent. But now, we need more. The pace at which society is moving in terms of marriages and dissolution of marriages is way ahead of the pace at which legislation is moving.

If a marriage does not last, there should be a quicker way to resolve it.

(The writer is the author of Seven Conversations and an educator at Scholar Strategy. She can be reached at @NisthaTripathi)