IN THE SUPREME COURT OF INDIA
|Citation||AIR 2017 SC 4417|
|Date of Judgement||12th September 2017|
|Bench||A.K. Goel and U.U. Lalit, JJ.|
(Arising out of Special Leave Petition (Civil) No. 20184 of 2017)
The following writeup is a case study of a supreme court case (Civil Appeal No. 11158 of 2017) which was decided on 12th September 2017. Appellant in the case was Amardeep Singh, Responded by Harveen Kaur. The case was Judged by two bench Judges A.K. Goel and U.U. Lalit, JJ. Counsels for appearing parties were K.V. Vishwanathan, Sr. Adv. (A.C), Abhishek Kaushik, Vrinda Bhandari, Mukunda Rao Angara, Jaishree Viswanathan, Pradeep Kumar Mishra, Ashish Upadhyay, T.R.B. Sivakumar, Ashish Virmani, Rohit Sharma and Harneet Singh Oberoi, Advs. The main concern of this case was that does that exercising power under Article 142 of the constitution to waive the period under Section 13 B (2) was mandatory or directory. The original case is the judgement summary given by the bench where the judges give direction regarding the issue and cites previous judgements hence leading them to a fair conclusion.
The Parties were married on 16th January 1994 in Delhi. They later had two children in 1995 and 2003. After several disputes and difference in opinion the parties started living separately which also gave rise to civil and criminal proceedings. The disputes were decisively settled with a decision to mutual consent divorce on 28th April 2017. The respondent was granted with permanent alimony of 2.75 crores and was given two cheques for the same of ₹ 50,00,000 by the appellant, they both agreed on to keep the custody of children with the appellant.
- The parties were divorced and living separately for more than eight years.
- All the civil disputes, criminal disputes, alimony, children’s custody matter were all settled
- The parties completed the first period of living separately as per Section 13 B (1) of the Hindu Marriage Act 1955.
- The parties were of collective view to waive off their duration of living together.
- The parties approached the apex court because it was only under the capacity of the Supreme court to take decisions in this matter.
- Whether exercising power under Article 142 of the Constitution of India 1947 to waive the period under Section 13 B (2) of the Hindu Marriage Act 1955 is mandatory or directory?
1. Article 142 of Constitution of India:
Provides for discretion power to lie with the Supreme Court, it states that the court while exercising its jurisdiction may pass such decree, make order as necessary for doing complete justice in any cause or matter pending before it.
2. Section 13 B (2) of the Hindu Marriage Act 1955:
The Hindu Marriage Act provides statutory grounds to dissolve marriage. Amendment was added to the Act in the year 1976, which contained the concept of divorce by mutual consent. However, section 13B (2) contains a bar to divorce being granted before six months of time elapsing after filing for divorce with mutual consent.
1. Nikhil Kumar vs. Rupali Kumar (2016)
The case was dismissed under Article 142 of the Constitution of India wherein the court removed the statutory period of six months and the marriage was hence dissolved.
2. Poonam vs. Sumit Tanwar (2010)
In this particular case the Apex Court held that the power under Article 142 can be executed when the marriage has broken beyond limit and anything further would only cause anguish to the parties involved.
3. Manish Goel vs. Rohini Goel (2010)
The Supreme Court in this case held that Article 142 of the Constitution of India does not hold the capacity to waive off the statutory period of six months for the second motion under Section 13 B of the Hindu Marriage Act 1955.
The appeal was disposed off with the court giving directions for future considering the facts and cited cases of past. The court held that if the parties are successful in fulfilling the requirements for the waiver, then it will be the courts discretion to make a decision. The requirements which the court informed to consider are that the first period as given under Section 13 (1) of Hindu Marriage Act 1995 is completed. Also, the court should make sure that there is no chance left for the parties to get together and all the efforts are put as per the terms of Family Court Act to reunite the parties. There should be no civil, criminal proceedings left between the parties and all matters of Alimony, Children’s custody must be declared already.
The court said that the waiver application can be filled after seven days of completion of the first motion with proper prayer for waive. After satisfaction of these lines it will be up to the courts discretion to waive off the duration. As this section is not mandatory but directory so it will be open to the court to consider facts and circumstances of the case where there is no possibility of parties to resume cohabitation and decide the matter.
The court came to the conclusion that provision of Section 13 B (2) of the Hindu Marriage Act 1955 is Directive and not mandatory. India has always been in distress to maintain the two diametrically opposite views that are to make far- reaching reforms and also to maintain the existing state of affairs. The Hindu Marriage Act seems to not be in favour of either view. Although there is a need to clarify directions regarding various aspects of the Act like the mentioned in the above case. It was previously very difficult for married duo to go for a Divorce due to its complex structure and society. Though this mindset of society is changing with time. In this judgement it was proved that there is flexibility in deciding the waiting period. With proper guidelines of the court it is thereafter possible for the subordinate courts to grant a waiver if these requirements are fulfilled. This decision will help the parties in deciding their future and resettlement and unnecessary waiting period will add on to their anxiety. Therefore, setting aside the period by considering circumstances is considered as a step towards definitive Justice.