India: Six Months Waiting Period Section 13B (2) Of Hindu Marriage Act For Divorce By Mutual Consent Not Mandatory: Supreme Court

Last Updated: 10 October 2017
Article by Lucy Rana and Daljeet Dabas

In the recent case of AMARDEEP SINGH VS. HARVEEN KAUR, CA NO, 11158 OF 2017 it has been held by the Supreme Court that the period of 6 months, as 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. For a better understanding the brief facts along with the section and judgements have been discussed below-

BRIEF FACTS

The marriage of the Appellant and the Respondent took place on 16th January, 1994 at Delhi. Two children were born from the wedlock in 1995 and 2003 respectively. Some dispute arose between the parties and thereafter both the parties started living separately in 2008. On 28th April, 2017 a settlement was arrived between the parties to resolve all the disputes and seek divorce by mutual consent. The Respondent wife is to be given permanent alimony of Rs.2.75 crores. The Appellant husband 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. Accordingly, a Civil Suit was filed before the Family Court (West), Tis Hazari Court, New Delhi and on 8th May, 2017 and statements of the parties were recorded. The parties 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 to Supreme Court on the ground that only Supreme Court can relax the six months period as per previous decisions of this Court.

DECISION OF THE COURT

The question which came up for consideration before the Hon'ble Supreme Court was whether exercise of power under Article 142 of the Constitution to waive the period under Section 13B(2) of the Hindu Marriage Act was mandatory or directory. While determining this point the Hon'ble Supreme Court referred the decision in the case of Manish Goel vs. Rohini Goel (2010) 4 SCC 393, wherein the bench of two Hon'ble 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 the second motion under Section 13B, as doing so will be passing an order in contravention of a statutory provision.

The court further held that "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."

In this regard the Hon'ble Court held that in determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court was of the view that 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;
  5. 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 at the discretion of the Court.

CONCLUSION

The court concluded that the provision of section 13 B (2) of the HMA is not mandatory but is directive

The court went on to hold that "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.

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."

The Court was of the opinion 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, where the parties are unable to appear in person for any just and valid reason as may satisfy the court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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