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.= Not mandatory -a Land Mark Judgment

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11158 OF 2017
(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)
Amardeep Singh …Appellant
Versus
Harveen Kaur …Respondent
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. The question which arises for consideration in this appeal is
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.
1
2. Factual matrix giving rise to this appeal is that marriage
between the parties took place on 16th January, 1994 at Delhi.
Two children were born in 1995 and 2003 respectively. Since
2008 the parties are living separately. Disputes between the
parties gave rise to civil and criminal proceedings. Finally, on 28th
April, 2017 a settlement was arrived at to resolve all the disputes
and seeks divorce by mutual consent. The respondent wife is to
be given permanent alimony of Rs.2.75 crores. Accordingly, HMA
No. 1059 of 2017 was filed before the Family Court (West), Tis
Hazari Court, New Delhi and on 8th May, 2017 statements of the
parties were recorded. The appellant husband has also handed
over two cheques of Rs.50,00,000/-, which have been duly
honoured, towards part payment of permanent alimony. Custody
of the children is to be with the appellant. They have sought
waiver of the period of six months for the second motion on the
ground that they have been living separately for the last more
than eight years and there is no possibility of their re union. Any
delay will affect the chances of their resettlement. The parties
have moved this Court on the ground that only this Court can
relax the six months period as per decisions of this Court.
2
3. Reliance has been placed inter alia on decision of this Court
in Nikhil Kumar vs. Rupali Kumar1 wherein the statutory
period of six months was waived by this Court under Article 142
of the Constitution and the marriage was dissolved.
The text of Section 13B is as follows:
“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.”
4. There is conflict of decisions of this Court on the question
whether exercise of power under Article 142 to waive the
statutory period under Section 13B of the Act was appropriate. In
1 (2016) 13 SCC 383
3
Manish Goel versus Rohini Goel2
, a Bench of two-Judges of
this 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. It was
observed :
“14. Generally, no court has competence to issue a
direction contrary to law nor can the court direct an
authority to act in contravention of the statutory provisions.
The courts are meant to enforce the rule of law and not to
pass the orders or directions which are contrary to what has
been injected by law. (Vide State of Punjab v. Renuka
Singla[(1994) 1 SCC 175], State of U.P. v. Harish Chandra
[(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co.
Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand
Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v.
Ashrafulla Khan [(2002) 2 SC 560]
15. A Constitution Bench of this Court in Prem Chand Garg
v. Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p.
1002, para 12)
“12. … An order which this Court can make in order to do
complete justice between the parties, must not only be
consistent with the fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent with the
substantive provisions of the relevant statutory laws.”
(emphasis supplied)
The Constitution Benches of this Court in Supreme Court Bar
Assn. v. Union of India [(1998) 4 SCC 409] and E.S.P.
Rajaram v. Union of India [(2001) 2 SCC 186] held that under
Article 142 of the Constitution, this Court cannot altogether
ignore the substantive provisions of a statute and pass
orders concerning an issue which can be settled only
2 (2010) 4 SCC 393
4
through a mechanism prescribed in another statute. It is not
to be exercised in a case where there is no basis in law
which can form an edifice for building up a superstructure.”
5. This Court noted 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 agony3
. This
view was reiterated in Poonam versus Sumit Tanwar4
.
6. In Neeti Malviya versus Rakesh Malviya5
, this Court
observed that there was conflict of decisions in Manish Goel
(supra) and Anjana Kishore versus Puneet Kishore6
. The
matter was referred to bench of three-Judges. However, since the
matter became infructuous on account of grant of divorce in the
meanwhile7
.
3 Para 11 ibid, noting earlier decisions in Romesh Chander v. Savitri (1995)
2 SCC 7; Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal
v. Anil Sabharwal (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4
SCC 226; Kiran v. Sharad Dutt (2000)10 SCC 243; Swati Verma v. Rajan Verma
(2004) 1 SCC 123; Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505; Jimmy
Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga
Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu
Kohli (2006) 4 SCC 558; 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 734
4 (2010) 4 SCC 460
5 (2010) 6 SCC 413
6 (2002) 10 SCC 194
7 Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007
5
7. Without any reference to the judgment in Manish Goel
(supra), power under Article 142 of the Constitution has been
exercised by this Court in number of cases8
even after the said
judgment.
8. We find that in Anjana Kishore (supra), this Court was
dealing with a transfer petition and the parties reached a
settlement. This Court waived the six months period under Article
142 in the facts and circumstances of the case. In Anil Kumar
Jain versus Maya Jain9
, one of the parties withdrew the consent.
This Court held that marriage had irretrievably broken down and
though the civil courts and the High Court could not exercise
power contrary to the statutory provisions, this Court under
Article 142 could exercise such power in the interests of justice.
Accordingly the decree for divorce was granted.
8 Priyanka Singh v. Jayant Singh(2010) 15 SCC 390; Sarita Singh v.
Rajeshwar Singh (2010) 15 SCC 374; Harpreet Singh Popli v. Manmeet Kaur Pople
(2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234; Veena v.
State (Govt of NCT of Delhi) (2011) 14 SCC 614; 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
9 (2009) 10 SCC 415
6
9. After considering the above decisions, we are of the view
that since Manish Goel (supra) holds the field, in absence of
contrary decisions 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.
10. However, we find that the question whether Section 13B(2)
is to be read as mandatory or discretionary needs to be gone into.
In Manish Goel (supra), this question was not gone into as it
was not raised. This Court observed :
“23. The learned counsel for the petitioner is not able to
advance arguments on the issue as to whether, statutory
period prescribed under Section 13-B(1) of the Act is
mandatory or directory and if directory, whether could be
dispensed with even by the High Court in exercise of its
writ/appellate jurisdiction.”
11. Accordingly, vide order dated 18th August, 2017, we passed
the following order :
“List the matter on 23rd August, 2017 to consider the question
whether provision of Section 13B of the Hindu Marriage, Act,
1955 laying down cooling off period of six months is a
mandatory requirement or it is open to the Family Court to
7
waive the same having regard to the interest of justice in an
individual case.
Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus
to assist the Court. Registry to furnish copy of necessary
papers to learned Amicus”.
12. Accordingly, learned amicus curiae has assisted the Court.
We record our gratitude for the valuable assistance rendered by
learned amicus who has been ably assisted by S/Shri Abhishek
Kaushik, Vrinda Bhandari and Mukunda Rao Angara, Advocates.
13. Learned amicus submitted that 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. Nalini10
,
Karnataka High Court in Roopa Reddy vs. Prabhakar
Reddy11
, Delhi High Court in Dhanjit Vadra vs. Smt. Beena
Vadra12 and Madhya Pradesh High Court in Dinesh Kumar
Shukla vs. Smt. Neeta13
. Contrary view has been taken by
Kerala High Court in M. Krishna Preetha vs. Dr. Jayan
10 AIR 1986 AP 167 (DB)
11 AIR 1994 Kar 12 (DB)
12 AIR 1990 Del 146
13 AIR 2005 MP 106 (DB)
8
Moorkkanatt14
. It was submitted that Section 13B(1) relates to
jurisdiction of the Court and the petition is maintainable only if
the parties are living separately for a period of one year or more
and if they have not been able to live together and have agreed
that the marriage be dissolved. Section 13B(2) is procedural. He
submitted that the discretion to waive the period is a guided
discretion by consideration of interest of justice where there is no
chance of reconciliation and parties were already separated for a
longer period or contesting proceedings for a period longer than
the period mentioned in Section 13B(2). Thus, the Court should
consider the questions:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between the
parties?
v) Have the parties attended mediation/conciliation?
vi) Have the parties arrived at genuine settlement
which takes care of alimony, custody of child or
any other pending issues between the parties?
14 AIR 2010 Ker 157
9
14. The Court must be satisfied that the parties were living
separately for more than the statutory period and all efforts at
mediation and reconciliation have been tried and have failed and
there is no chance of reconciliation and further waiting period will
only prolong their agony.
15. We have given due consideration to the issue involved.
Under the traditional Hindu Law, as it stood prior to the statutory
law on the point, marriage is a sacrament and cannot be
dissolved by consent. The Act enabled the court to dissolve
marriage on statutory grounds. By way of amendment in the year
1976, the concept of divorce by mutual consent was introduced.
However, Section 13B(2) contains a bar to divorce being granted
before six months of time elapsing after filing of the divorce
petition by mutual consent. The said period was laid down to
enable the parties to have a rethink so that the court grants
divorce by mutual consent only if there is no chance for
reconciliation.
16. The object of the provision is to enable the parties to
dissolve a marriage by consent if the marriage has irretrievably
10
broken down and to enable them to rehabilitate them as per
available options. The amendment was inspired by the thought
that forcible perpetuation of status of matrimony between
unwilling partners did not serve any purpose. 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.
17. In determining the question whether provision is mandatory
or directory, language alone is not always decisive. The Court has
to have the regard to the context, the subject matter and the
object of the provision. This principle, as formulated in Justice G.P.
Singh’s “Principles of Statutory Interpretation” (9
th Edn., 2004),
has been cited with approval in Kailash versus Nanhku and
ors.15as follows:
15 (2005) 4 SCC 480
11
“The study of numerous cases on this topic does not
lead to formulation of any universal rule except this
that language alone most often is not decisive, and
regard must be had to the context, subject-matter and
object of the statutory provision in question, in
determining whether the same is mandatory or
directory. In an oft-quoted passage Lord Campbell
said: ‘No universal rule can be laid down as to whether
mandatory enactments shall be considered directory
only or obligatory with an implied nullification for
disobedience. It is the duty of courts of justice to try to
get at the real intention of the legislature by carefully
attending to the whole scope of the statute to be
considered.’
“ ‘For ascertaining the real intention of the
legislature’, points out Subbarao, J. ‘the court may
consider inter alia, the nature and design of the
statute, and the consequences which would follow
from construing it the one way or the other; the
impact of other provisions whereby the necessity of
complying with the provisions in question is avoided;
the circumstances, namely, that the statute provides
for a contingency of the non-compliance with the
provisions; the fact that the non-compliance with the
provisions is or is not visited by some penalty; the
serious or the trivial consequences, that flow
therefrom; and above all, whether the object of the
legislation will be defeated or furthered’. If object of
the enactment will be defeated by holding the same
directory, it will be construed as mandatory, whereas if
by holding it mandatory serious general
inconvenience will be created to innocent persons
without very much furthering the object of enactment,
the same will be construed as directory.”
18. Applying the above to the present situation, we are of
the view that where the Court dealing with a matter is
12
satisfied that a case is made out to waive the statutory
period under Section 13B(2), it can do so after considering
the following :
i) 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;
ii) 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;
iii) the parties have genuinely settled their differences
including alimony, custody of child or any other
pending issues between the parties;
iv) the waiting period will only prolong their agony.
19. The waiver application can be filed one week after the
first motion giving reasons for the prayer for waiver.
13
20. 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.
21. Since we are of the view that the period mentioned in
Section 13B(2) is not mandatory but directory, 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.
22. Needless to say that in conducting such proceedings
the Court can also use the medium of video conferencing
and also permit genuine representation of the parties
through close relations such as parents or siblings where the
parties are unable to appear in person for any just and valid
reason as may satisfy the Court, to advance the interest of
justice.
14
23. The parties are now at liberty to move the concerned
court for fresh consideration in the light of this order.
The appeal is disposed of accordingly.
…………………………………..J.
(ADARSH KUMAR GOEL)
…………………………………..J.
(UDAY UMESH LALIT)
NEW DELHI;
SEPTEMBER 12, 2017.
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ITEM NO.1502 COURT NO.11 SECTION XIV
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 11158/2017
AMARDEEP SINGH Appellant(s)
VERSUS
HARVEEN KAUR Respondent(s)
Date : 12-09-2017 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. T. R. B. Sivakumar, AOR
For Respondent(s)
Hon’ble Mr. Justice Adarsh Kumar Goel pronounced the judgment
of the Bench comprising His Lordship and Hon’ble Mr. Justice Uday
Umesh Lalit.
The appeal is disposed of in terms of the signed reportable
judgment.
(SWETA DHYANI) (PARVEEN KUMARI PASRICHA)
SENIOR PERSONAL ASSISTANT BRANCH OFFICER
(Signed reportable judgment is placed on the file)
16