Amardeep Singh vs. Harveen Kaur case is one of the recent landmark cases in the development of family law as it clarified the issue of whether the minimum period of six months stipulated under section 13(B)(2) of the Hindu Marriage Act, 1955 for a motion for passing a decree of divorce based on mutual consent mandatory or can be relaxed in any exceptional situations.
CITATION: CIVIL APPEAL NO. 11158 OF 2017
BENCH: J. ADARSH KUMAR GOEL
FACTS OF AMARDEEP SINGH VS. HARVEEN KAUR CASE:
The marriage between the Appellant and the Respondent was solemnized on 16th January 1994 in Delhi and were having two children in 1995 and 2003, respectively.
In 2008, the decision to live separately was being taken leading to some civil as well as criminal proceedings between the parties.
In order to resolve all such disputes, they finally arrived a settlement at with a decision of seeking divorce by mutual consent under sec 13(B)(2) of the Hindu Marriage Act,1955. The Respondent was to be provided with permanent alimony of Rs 2.75 crores, towards which the part payment of Rs 50 lakh was already been handed over by the Appellant and the Court had granted the custody of the children to him.
In case of divorce being filed by mutual consent under Section 13B of the Hindu Marriage Act, 1955 there has to be a composite period of 18 months of separation – one year provided in section 13(B)(1) and six months in section 13(B)(2).
The six months waiting period prescribed by law under sec 13(B)(2) is for the parties to resolve all their disputes and to give another chance to prevent their dissolution of marriage.
However, the parties have sought a waiver of this period of six months for the second motion on the ground that they have been living separately for the last over eight years and there is no possibility of their reunion and any further delay would only affect their chances of resettlement. Hence, they moved to the Supreme Court on the sole basis that the concerned Court can only relax the six months period given under sec 13(B)(2) of the Hindu Marriage Act,1955.
LEGAL ISSUES:
Whether the minimum period of six months stipulated under section 13(B)(2) of the Hindu Marriage Act, 1955 for a motion for passing a decree of divorce based on mutual consent mandatory or can be relaxed in any exceptional situations?
RATIO DECIDENDI:
In view of whether the exercise of power under Article 142 to waive the statutory period under section 13B of the Act was appropriate, there had been a conflict in the decisions of the Court. In Manish Goel v. Rohini Goel case, a Bench of two Judges of the Supreme Court held that the 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 pass an order in contravention of the statutory provision.
No court is competent 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. [Case Reference: Vide State of Punjab v. Renuka Singla (1994); State of U.P. v. Harish Chandra (1996); Union of India v. Kirloskar Pneumatic Co. Ltd. (1996)]
However, the Court noted it could exercise the power granted under Article 142 in such cases where the marriage between the parties is to be found totally unworkable, emotionally dead, beyond salvage, and broken down irretrievably. It also exercised this power to put an end to all litigations and to save the parties from further agony. [Case Reference: Anil Kumar Jain v. Maya Jain]
JUDGEMENT:
Under the traditional Hindu Law, as it stood prior to the statutory law the point, marriage is a sacrament and cannot be dissolved by consent. But through an amendment in the year 1976, Parliament introduced the concept of divorce by mutual consent. However, Section 13(B)(2) contains a bar on divorce being granted before six months of time elapsing after filing the divorce petition by mutual consent.
The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has been irretrievably broken down and to enable them to rehabilitate them as per available options. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation.
The court held that in determining whether the provision is mandatory or directory, the language, context, subject, and object of the provision must also be taken into account. Thus, the court may waive the statutory period of six months under section 13(B)(2) after taking into consideration:
- the statutory period of separation of parties of six months specified in section 13(B)(2), besides the one year under section 13(B)(1) is already over before filing the petition itself;
- 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 to reunite the parties have failed and there is no scope for any success in that direction by any further efforts;
- Disputes including alimony, custody of the child, or any pending issues have been genuinely being settled by the parties.
- The waiting period is likely to prolong the agony of the parties.
- They can apply for waiving the waiting period of one week after the first motion giving reasons for the prayer for waiver.
After fulfilling the above conditions, the application for granting a waiver of the waiting period shall be at the court’s discretion.
In view of the above-based facts and circumstances, the Hon’ble Mr. Justice Adarsh Kumar Goel pronounced the judgment of the Bench comprising His Lordship and Hon’ble Mr. Justice Uday Umesh Lalit that the period specified in section 13(B)(2) is not mandatory but directive 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.
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