Abstract

In 2017, a married couple who had been living separately for more than 8 years now, went seeking divorce on mutual consent. All their disputes, with regards to divorce, were resolved and there seemed to be no hope left of the marriage to re-conciliate. So, after deciding on seeking a divorce and filing a divorce decree in the District Court they approached Hon’ble Supreme Court in order to seek to waver off the stipulated separation period of minimum 6 months, as given in Section 13B(2) of the Hindu Marriage Act. The Supreme Court held that considering the given facts, prolonging the divorce would just increase the agony of the parties, and thereby the divorce was granted by wavering the separation period.

Introduction

Marriage is said to be the holy matrimony of two souls. Where in some cultures like the Catholic Church, marriage is considered to be a contract in Hinduism it is not a contract. Hindu marriage is a samskara or a rite of passage. Samskara is that which gives shape to one’s world and helps one live a full life. The Hindu marriage right, Saptapadi in which the couple takes seven steps to share seven worldly gifts are seen as an indissoluble bond. But when things don’t work out, the couple may prefer separation or legal divorce.

The Hindu Marriage Act defines that any marriage solemnised can be dissolved by a decree of divorce on a number of grounds[1]. The petition for divorce can be filed by either the husband or the wife. The grounds for a divorce are:

1. The spouse has voluntary sexual intercourse with someone other than the spouse.[2]
2. Treating the spouse with cruelty.[3]
3. Desertion of the petitioner for a period of not less than 2 years.[4]
4. Conversion of the spouse from Hindu to some other religion.[5]
5. The spouse is incurable of unsound mind or has been suffering from a mental disorder.[6]
6. Mutual agreement between the husband and wife that the marriage should be dissolved and it’s been more than a year of them living separately.

When a married couple applies for a divorce on mutual consent[7], there are some conditions that have to be fulfilled before the divorce is solemnised. These conditions are:

1. The marriage has been solemnised
2. They have been living separately for a period of one year or more
3. There is a mutual agreement that the marriage should be dissolved
4. A separation period of at least six months and a maximum of eighteen months in-between the filing of the petition and the declaration of divorce

In the case of Amardeep supra, it was contemplated that whether this six months of separation for granting the decree of divorce is compulsory or not.  The parties, in this case, had filed for a divorce on mutual consent and had been living separately for more than 9 years now. A settlement had also been reached and disputes related to alimony and child custody had also been resolved now. The parties had then approached the Hon’ble Supreme Court of India for seeking a waiver of the compulsory 6 months of separation as stipulated in Section 13B(2) of the Hindu Marriage Act.

Facts

• Marriage between the two parties took place on 16^th January 1994 in Delhi.
• Two children were born in 1995 and 2003 respectively.
• Since 2008 the parties have been living separately. Disputes between the parties gave rise to civil and criminal proceedings between them.

• On 28^th April 2017, a settlement was arrived at to unravel all the disputes and to seek divorce by mutual consent.
• The respondent (wife) was to be given permanent alimony of Rs.2.75 crores.
• Accordingly, a petition for divorce on mutual consent was filed before the Family Court (West), Tis Hazari Court, New Delhi, and on 8th May 2017 statements of the parties were recorded.
• Custody of the children was also decided upon. Both the children were supposed to stay with their father i.e. with the appellant.
• Now the parties had approached the Hon’ble Supreme Court of India, to seek a waiver of the period of six months on the ground that they have been living separately for more than eight years now. There is no possibility of their reunion. Any delay in granting the divorce would rather affect the chances of their resettlement.

Issues

There were majorly 2 issues around which the case resolved:

1. Whether Section 13B(2) of the Hindu Marriage Act is to be read as mandatory or as discretionary?
2. Whether the minimum period of 6 months, under Section 13B(2) of the Hindu Marriage Act for giving divorce on mutual consent is mandatory?

Related Provisions

Section 13B(2) of the Hindu Marriage Act

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 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.

The objective of the above provision was 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 section was introduced to the Hindu Marriage Act after an amendment in 1976. The amendment was introduced keeping in mind that forcible continuation of the status of a marriage between unwilling partners does not serve any purpose.

The purpose of the cooling-off the period (6 months-18 months) was to safeguard the matrimonial bond against a hurried decision. Even if there was a single otherwise possibility of differences being reconciled, the marriage could be saved. 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.

Article 142 of the Indian Constitution

Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

1. The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
2. Subject to the provisions of any law made on this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

This article provides discretionary power to the Supreme Court of India, that the court may pass such decree or make such order that justice is served in any matter. Such a decree will be enforceable across the whole territory of India. Through the means of this article, the Hon’ble Supreme Court is also awarded sweeping powers, to ensure that justice is done. It is mostly used in cases related to human rights and environmental protection.

Related Cases

1. Rajaram v. Union of India, 2001[8]

In this case, the issue was whether the Supreme Court can waiver off the 6 months compulsory period[9] by exercising its power under Article 142 of the Constitution. It was held that under Article 142 of the Constitution, Hon’ble Supreme Court cannot altogether ignore the applicable provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. In this case, the 6 months period was not waivered off.

• Manish Goel v. Rohini Goel, 2010

A Bench of two judges of the Supreme Court held that jurisdiction of the Court under Article 142 could not be used to waive the statutory period of six months under Section 13B, as doing so will be passing an order in contravention of a statutory provision. It was observed that,

‘Generally, no court has the 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.’

• Poonam v. Sumit Tanwar, 2010

In his case, it was held that the power under Article 142 can be 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 put in use to put eternal rest to all litigations and to save the parties from further agony.

• Nikhil Kumar v. Rupali Kumar, 2016

The Hon’ble Supreme Court held in this case that

‘With regards to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties.’

The statutory period of six months was waived by this Court under Article 142 of the Constitution and the marriage was dissolved.

Judgement

The Court dealing with this matter was satisfied that a case could be made out to waive the statutory period under Section 13B(2). The period of 6 months of compulsory separation as stipulated in Section 13B(2) was waivered off. This judgment was passed 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 filing of the divorce.
2. All efforts for mediation, conciliation including efforts in terms of Order XXXII A 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 the child, or any other pending issues between the parties.
4. The waiting period will only prolong their agony.

The waiver application could be filed one week after the first motion giving reasons for the prayer for waiver.

As proceedings happened, the counsel from the appellant side was asked to prove the stance that the provision of section 13B(2) is discretionary and Hon’ble Supreme Court under Article 142 could grant a waiver of the compulsory 6 months of separation. But the counsel from the petitioner side unable to do the same, Mr. K. V. Vishwanathan was appointed as the amicus curiae for the case.

Accordingly, learned amicus curiae kept forward the following questions in order to decide whether in the current case divorce should be granted by wavering off the compulsory 6 months period:

1. How long parties have been married?
2. How long litigation is pending?

• How long they have been staying apart?
• Are there any other proceedings between the parties?
• Have the parties attended mediation/conciliation?
• Have the parties arrived at a genuine settlement that takes care of alimony, custody of the child, or any other pending issues between the parties?

It was found that the parties were living separately for more than the statutory period, any efforts like mediation and conciliation had failed and there is no chance left for the marriage to re-conciliate back. Thus, the waiting period would just simply prolong the agony of both parties. Based on this stance, the court came on the above judgment.

Concepts Highlighted

The judgment was in favour of wavering off the separation period was given after considering the nature, design, and consequences of the statute section 13B(2). As pointed out by Justice Subbarao, the court to know the real intention of a piece of the legislature may consider inter alia,

• the nature and design of the statute
• the consequences which would follow from interpreting it
• the impact of other provisions whereby the necessity of complying with the provisions in question is avoided
• the circumstances for example, that the statute provides for a possibility of the non-compliance with the provisions
• the fact that the non-compliance with the provisions is or is not encountered by some penalty
• the serious or the trivial consequences
• whether the object of the legislation will be defeated or furthered.

If the objective of that enactment will be lost by holding the same, it will be interpreted as mandatory. But if by holding it mandatory serious general inconvenience will be created to innocent people without much promoting the objective of enactment, the same will be construed as a directory or discretionary.

After applying the above concept to the present case, it can ascertain that the provision of compulsory separation was discretionary and not mandatory. The reasons can be stipulated as:

• The purpose of the section was to allow a certain period of time to reconsider their idea of divorce. For couples who were living separated for more than a year, and have decided through mutual consent a chance of reconciliation is minuscule.
•  Usually, couples try to means like mediation or conciliation to find a solution other than divorce. But when such a procedure doesn’t work then the only solution left is legal divorce.
• After resolving all the disputes like alimony and child custody, a time gap in between filing and awarding of divorce might result in a new dispute between the parties. The chances of a peaceful resolution might reduce.
• The couple approaches the court for divorce with a made-up mind. By giving a compulsory separation period, it increases the agony and anguish of both the parties.

Applying the above, the Court came to the decision that the said provision shall be waived off and the parties shall be relieved of their sufferings now.

Conclusion

Therefore, the landmark judgment leads to the compulsory separation period of a minimum of six months as given in section 13B(2) of the Hindu Marriage Act, being wavered off. The decision was made based on the facts of the case if,

• The parties have had a failed mediation, conciliation
• Have been living separately for more than the period stipulated in the section
• Have resolved all disputed amongst them
• And delaying the separation would just increase agony

Then, the Court may waiver off the separation period, and divorce is granted. The decision was made as per the power vested with the Supreme Court under Article 142 of the Indian Constitution.

Frequently Asked Questions

1. Under which section of the Hindu Marriage Act can divorce be granted on mutual consent?

Ans. Under Section 13B of the Hindu Marriage Act, a divorce petition can be filed by the withering of the spouse on mutual consent.

• What is the separation period as stipulated in Section 13B(2) of the Hindu Marriage Act?

Ans. The separation period is a minimum of 6 months and a maximum of 18 months as per section 13B(2) of the Hindu Marriage Act.

• What was the major issue discussed in the case of Amardeep Singh v. Harveen Kaur?

Ans. The major issue of the case was whether the compulsory separation period as given in Section 13B(2) can be waved off given the facts of the case.

• What was the judgement of the Amardeep Singh v. Harveen Kaur case?

Ans. It was contended that the compulsory separation period of 6 months as stipulated would be wavered off because the marriage has no chance to get re-conciliated and prolonging the divorce would just increase the agony of the parties.

References

Hindu Marriage Act, 1955

https://indiankanoon.org/doc/79830357/

https://www.thehindu.com/opinion/op-ed/article-142-and-the-need-for-judicial-restraint/article18474919.ece

https://indiankanoon.org/doc/432882/

https://indiankanoon.org/doc/1049629/

https://indiankanoon.org/doc/50438237/

[1] Section 13 of the HMA

[2] Section 13(1)(i) of HMA

[3] Section 13(1)(ia) of HMA

[4] Section 13(1)(ib) of HMA

[5] Section 13(1)(ii) of HMA

[6] Section 13(1)(iii) of HMA

[7] Under Section 13B of HMA

[8] 2001 2 SCC 186

[9] under Section 13B(2) of HMA