Tuesday, July 31, 2012



We often come across stories,newly married couples going for divorce after marital discord with in few months and some times,with in  few weeks or few days.[in exceptional cases].

whether it is arranged or love marriage ,breaking up with in few months has become common phenomena in this Information& Communication Technology age and highly competitive modern urban life.Where we don't have time to communicate and understand each other.In Anju Jain case ,a highly qualified couple filed mutual consent[H.M.S13B]application for divorce,the same  was rejected on technical grounds ,as it was filed with in 48 hrs of marriage.

The marital discord are due to several reasons like incompatibility mismatch,misunderstanding,ego clashes and other reasons,which is effecting the peaceful marital  life and cohabitation.

The couples in an emotional flareup takes an hasty decision to end the marital relationship permanently for trivial and insignificant reasons.

There are many reasons for modern marital discords among modern couples [who are opting for mutual consent divorce] like nuclear families,working couples,financial independence,career choices,mismatch and  carefree attitude or individualistic mindset[both are extremely ego-centric,lacks adjustment mentality,inability to take up family responsibility ] 

The court in number of cases opined that the divorce should be granted,only if ,it is convinced that it is a fit case of "Irretrievable Breakdown of Marriage ",where there is no possibility  of patch up or conciliation between parties.

The court gives ample opportunity to couples to patch up the differences and save marital relationship.In view of this principle enunciated in statutory law [Marriage act or civil procedure code ],the conciliation efforts should be made for effective resolution of marital discord before issuing the degree for the dissolution of the marriage.

The court keeps the  application for divorce in cold storage for some time,it can be called 'cooling period' or 'wait period' ,with an apprehension that couples may patch up their differences  before the court take up their application for divorce. 


The Hindu Marriage Act 1955 as well as Special Marriage Act 1954 lay down that no petition for divorce shall be presented before period of  one year has lapsed since the solemnization of marriage,unless it is a case of extreme hardship or exceptional hardship or exceptional depravity,however ,there is no exact definition of hardship or depravity in the act.

This bar does not apply to nullity of marriage or judicial separation.This is also called "Fair Trial theory". 
The "Fair Trial to every Marriage" was first introduced in the England for the first time in Matrimonial Causes act .1937 ,India also adopted English Common law principles,No other personal law in India has this kind of provision except Hindu Marriage act 1955 and Special Marriage Act 1954.

Irretrievable Breakdown of Marriage not consonance with Fair Trial theory,If spouse commits adultery,extreme cruelty,suffering from venereal diseases or communicable diseases,perverted sexual behavior or unwanted behavior,in such cases "Fair Trail Theory" carries no meaning.

The wait period has been reduced to six months,it has been further reduced to three months after apex court verdict [ mutual consent is being granted in 2 or 3 sittings],there is lot of criticism for waiving of wait period ,it amounts to easy divorce.
Re-marriage -Wait period : 
Under both HM act as well as SM act ,no person will be allowed to re-marry before the decree of divorce granted,they can only marry after appeal is disposed off or only after  appeal limitation period has lapsed.However ,in Muslim law ,parties can re-marry after idda period.


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