In this article we will discuss:
1. Whether the minimum period of six months stipulated
under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for
passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional
situations ? and
2. Whether exercise of power under Article 142 to
waive the statutory period under Section 13B of the Act was appropriate ?
To answer these questions it is necessary to cite the
provision of Section 13-B of the Hindu Marriage Act, 1955
“13-B. Divorce by mutual consent - (1) Subject to
the provisions of this Act a petition for dissolution of marriage by a decree
of divorce may be presented to the district court by both the parties to a
marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that
they have been living separately for a period of one year or more, that they
have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.
(2) On the motion of both the parties made not earlier
than six months after the date of the presentation of the petition
referred to in sub-section (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in the meantime, the court
shall, on being satisfied, after hearing the parties and after making such inquiry as
it thinks fit, that a marriage has been solemnized and that the averments in
the petition are true, pass a decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree.”
Now, Regarding the first question it can be said that
it is now well settled that the waiting period enshrined under Section 13(B)2
of the Act is directory and can be waived by the court where proceedings are
pending, in exceptional situations.
This view is supported by judgments of the Andhra
Pradesh High Court in K.
Omprakash vs. K. Nalini AIR 1986 AP 167, Karnataka High Court in Roopa Reddy vs. Prabhakar
Reddy AIR 1994 Kar 12, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra
AIR 1990 Del 146 and Madhya
Pradesh High Court in Dinesh
Kumar Shukla vs. Smt. Neeta AIR 2005 MP 106
The Supreme Court in a very recent case (Amardeep Singh Vs. Harveen Kaur,
CIVIL APPEAL NO. 11158 OF 2017) considered
the above question in detail and held that the period mentioned in Section
13B(2) is not mandatory but directory and it will be open to the Court to
exercise its discretion in the facts and circumstances of each case where there
is no possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation.
In this case the Supreme Court observed that
" The object of the provision is to enable the parties to dissolve a
marriage by consent if the marriage has irretrievably broken down and to enable
them to rehabilitate them as per available options."
" The object of the cooling off the period was to safeguard against a hurried
decision if there was otherwise possibility of differences being reconciled."
" The object was not to perpetuate a purposeless
marriage or to prolong the agony of the parties when there was no chance of
reconciliation. Though every effort has to be made to save a marriage, if
there are no chances of reunion and there are chances of fresh rehabilitation,
the Court should not be powerless in enabling the parties to have a better
option."
On the basis of its observation the Supreme Court issued
following guidelines in this regard :
" where the Court dealing with a matter is satisfied
that a case is made out to waive the statutory period under Section 13B(2), it
can do so after considering the following :
1. 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;
2. 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;
3. the parties have genuinely settled their
differences including alimony, custody of child or any other pending issues
between the parties;
4. the waiting period will only prolong their agony.
The waiver application can be filed one week after the
first motion giving reasons for the prayer for waiver.
If the above conditions are satisfied, the waiver of
the waiting period for the second motion will be in the discretion of the
concerned Court. "
Thus cooling off period enshrined under Section 13(B)2
of the Act is directory and can be waived by the court where proceedings are
pending, in exceptional situations.
Now regarding the second question i.e., whether exercise of power under Article
142 to waive the statutory period under Section 13B of the Act was appropriate
? There is controversy in the judgements of the Supreme Court itself
In Anjana
Kishore versus Puneet Kishore (2002) 10 SCC 194 the Supreme Court was dealing
with a transfer petition and the parties reached a settlement. The Court waived the six months period
under Article 142 in the facts and circumstances of the case.
In Romesh
Chander v. Savitri (1995)2 SCC 7; Kiran v. Sharad Dutt (2000)10 SCC 243;
Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Rishikesh Sharma v.
Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 and
Satish Sitole v. Ganga (2008) 7 SCC 73 The Supreme Court held that power under Article 142 had been exercised
in cases where the Court found the marriage to be totally unworkable,
emotionally dead, beyond salvage and broken down irretrievably. This power was
also exercised to put quietus to all litigations and to save the parties from
further agony. This view was reiterated in Poonam versus Sumit Tanwar (2010) 4 SCC 460.
However in Manish
Goel versus Rohini Goel (2010) 4 SCC 393, a Bench of two-Judges of
Supreme Court held that jurisdiction of this Court under Article 142 could not
be used to waive the statutory period of six months for filing the second
motion under Section 13B, as doing so will be passing an order in contravention
of a statutory provision.
But without any reference to the judgment in Manish Goel, power under Article
142 of the Constitution has been exercised by the Supreme Court in number of
cases, even after the said judgment.(Priyanka
Khanna v. Amit Khanna (2011) 15 SCC 612; Devinder Singh Narula v. Meenakshi
Nangia (2012) 8 SCC 580; Vimi Vinod Chopra v. Vinod Gulshan Chpra (2013) 15 SCC
547; Priyanka Chawla v. Amit Chawla (2016) 3 SCC 126; Nikhil Kumar v. Rupali
Kumar (2016) 13 SCC 383)
This controversy is resolved by the Supreme Court in Amardeep Singh Vs. Harveen Kaur (CIVIL
APPEAL NO. 11158 OF 2017) wherein the Supreme Court held that
" we are of the view that since Manish Goel holds the field, in absence
of contrary decision by a larger Bench, power
under Article 142 of the Constitution cannot be exercised contrary to the
statutory provisions, especially when no proceedings are pending before this
Court and this Court is approached only for the purpose of waiver of the
statute."
Answer of both the questions is thus given.
