Section 13A and Section 13B of the Hindu Marriage Act, 1955
Section 13A deals with alternate relief in a divorce proceeding, while Section 13B provides the statutory route for divorce by mutual consent. Although both provisions concern matrimonial relief, they operate in different situations and have different requirements.
Section 13A: Alternate relief in divorce proceedings
Section 13A gives the court a limited discretion in a proceeding where a spouse has sought dissolution of the marriage by a decree of divorce. If the statutory conditions are met and the court considers it just in the circumstances, the court may grant a decree of judicial separation instead of divorce.
Meaning of alternate relief
The expression "alternate relief" means that the court may decline to dissolve the marriage immediately and may instead grant judicial separation. Judicial separation does not end the marriage. It permits the spouses to live separately while the marital tie continues.
The power under Section 13A is not available where the divorce petition is founded on the grounds excluded by the section, namely the grounds referred to in clauses (ii), (vi) and (vii) of Section 13(1). The provision should therefore be read together with Section 13, which deals with grounds of divorce.
Section 13B: Divorce by mutual consent
Section 13B permits both parties to a Hindu marriage to jointly seek dissolution of their marriage. Unlike a contested divorce under Section 13, a petition under Section 13B is based on the continuing mutual consent of both spouses and satisfaction of the statutory requirements.
Section 13B(1): Joint petition
Under Section 13B(1), both parties may jointly present a petition to the District Court when they have been living separately for a period of one year or more, have not been able to live together, and have mutually agreed that the marriage should be dissolved.
Basic requirements for divorce by mutual consent
A petition under Section 13B ordinarily requires the following elements:
- Both spouses join in presenting the petition.
- They have been living separately for at least one year before presentation of the petition.
- They have not been able to live together.
- They mutually agree that the marriage should be dissolved.
- The court is satisfied about the marriage and the truth of the material averments before granting the decree.
Section 14 separately provides the general rule that a divorce petition cannot be entertained within one year of the marriage, subject to the statutory exception contained in that section. See Section 14: no petition for divorce within one year of marriage.
Section 13B(2): Second motion and the six-month period
Section 13B(2) deals with the motion made by both parties after presentation of the joint petition. The statutory text provides that the motion is to be made not earlier than six months after presentation of the petition under Section 13B(1) and not later than eighteen months after that date, provided the petition has not been withdrawn in the meantime.
After hearing the parties and making the inquiry it considers appropriate, the court must be satisfied that the marriage was solemnized and that the averments in the petition are true. If the statutory requirements continue to be satisfied, the court may pass the decree declaring the marriage dissolved from the date of the decree.
Can the six-month cooling-off period be waived?
Yes, in an appropriate case. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period in Section 13B(2) is directory rather than mandatory and may be waived by the court where the circumstances justify doing so.
The Supreme Court later clarified in Amit Kumar v. Suman Beniwal (2021) that the factors discussed in Amardeep Singh are not to be applied with rigid statutory formality. The court considering waiver must exercise judicial discretion on the facts, including whether reconciliation remains possible and whether further waiting would serve a useful purpose.