six months waiting period for consent Divorce is not mandatory = 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 = 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.

 

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.

15

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