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REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.5946          OF     2012   (Arising out of SLP(C)No.21084 of 2012)

Devinder Singh Narula    … Appellant   

Vs.

Meenakshi Nangia    … Respondent

J     U     D     G     M     E     N     T   

ALTAMAS     KABIR,     J.   

1. Leave granted.

2. This appeal arises out of an order passed by  

the Additional District Judge-01, West Delhi,

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on 13.4.2012 in HMA No.204/2012, while  

entertaining a joint petition filed by the  

parties under Section 13-B of the Hindu  

Marriage Act, 1955.  On such petition being  

presented, the learned Court below posted the  

matter on 15.10.2012 for the purpose of second  

motion, as contemplated under Section 13-B of  

the aforesaid Act, which is extracted  

hereinbelow for reference:-

“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.

3. The Section itself provides for a cooling  

period of six months on the first motion being  

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moved, in the event the parties changed their  

minds during the said period. Accordingly,  

after the initial motion and the presentation  

of the petition for mutual divorce, the parties  

are required to wait for a period of six months  

before the second motion can be moved, and at  

that point of time, if the parties have made up  

their minds that they would be unable to live  

together, the Court, after making such inquiry  

as it may consider fit, grant a decree of  

divorce declaring the marriage to be dissolved  

with effect from the date of the decree.

4. Aggrieved by the said order of the learned  

Additional District Judge, fixing the date of  

the 2nd motion after six months, the petitioner  

has moved this Court by way of this appeal,  

relying on a decision of this Court in Anil  

Kumar     Jain   vs. Maya     Jain   [(2009) 10 SCC 415],  

whereby after arriving at a conclusion that the  

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marriage between the parties had broken down  

irretrievably, this Court felt justified to  

invoke its powers under Article 142 of the  

Constitution.

5. On behalf of both the parties it was urged that  

since more than 18 months had elapsed since the  

original petition under Section 13 of the Hindu  

Marriage Act, 1955, have been filed, the said  

period could be counted towards the cooling  

period of six months stipulated under Section  

13-B of the above Act.  It was urged that by  

such reckoning the parties have already  

completed the waiting period of six months, as  

envisaged under Section 13-B of the Act.

6. It was also urged that the other conditions  

contained in Section 13-B(1) of the Act had  

also been satisfied as the parties had been  

living separately for more than a year and had  

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mutually agreed that the marriage should be  

dissolved.  It was urged that except for the  

formality of not having made an application  

under Section 13-B, the other criteria had been  

duly fulfilled and having regard to the  

language of Section 13-B, a decree of  

dissolution of the marriage by way of mutual  

divorce should not be denied to the parties,  

since four months out of waiting period of six  

months contemplated under Section 13-B had  

already been completed.

7. It was contended that as was done in the case  

of Anil     Kumar     Jain   (supra), this Court could  

invoke its powers under Article 142 of the  

Constitution in the best interest of the  

parties. It was urged that technicality should  

be tampered by pragmatism, if substantive  

justice was to be done to the parties.

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8. On behalf of the State it was submitted that in  

view of the statutory provisions, the prayer  

being made on behalf of the petitioner and the  

respondent wife should not be entertained as  

that would lead to confusion in the minds of  

the public and would be against the public  

interest.

9. We have carefully considered the submissions  

made on behalf of the parties and have also  

considered our decision in Anil     Kumar     Jain  ’s  

case (supra).  It is no doubt true that the  

Legislature had in its wisdom stipulated a  

cooling period of six months from the date of  

filing of a petition for mutual divorce till  

such divorce is actually granted, with the  

intention that it would save the institution of  

marriage. It is also true that the intention of  

the Legislature cannot be faulted with, but  

there may be occasions when in order to do  

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complete justice to the parties it becomes  

necessary for this Court to invoke its powers  

under Article 142 in an irreconcilable  

situation. In fact, in the case of Kiran vs.  

Sharad     Dutt   [(2000) 10 SCC 243], which was  

considered in Anil     Kumar     Jain  ’s case, after  

living separately for many years and 11 years  

after initiating proceedings under Section 13  

of the Hindu Marriage Act, the parties filed a  

joint application before this Court for leave  

to amend the divorce petition and to convert  

the same into a proceeding under Section 13-B  

of the Act. Treating the petition as one under  

Section 13-B of the aforesaid Act, this Court  

by invoking its powers under Article 142 of the  

Constitution, granted a decree of mutual  

divorce at the stage of the SLP itself.  In  

different cases in different situations, this  

Court had invoked its powers under Article 142  

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of the Constitution in order to do complete  

justice between the parties.

10. Though we are not inclined to accept the  

proposition that in every case of dissolution  

of marriage under Section 13-B of the Act the  

Court has to exercise its powers under Article  

142 of the Constitution, we are of the opinion  

that in appropriate cases invocation of such  

power would not be unjustified and may even  

prove to be necessary.  The question with which  

we are faced is whether this is one of such  

cases?

11. As will appear in the averments made in this  

appeal, the appellant filed a petition under  

Section 12 of the Hindu Marriage Act on  

1.6.2011 on the ground that the marriage  

contracted on 26.3.2011, was a nullity; that  

the parties had been living separately since  

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their marriage and have not cohabitated with  

each other since 1.6.2011 and in future also  

they could never live together under one roof.  

According to the parties, they are residing  

separately from each other for the last one  

year and the respondent was presently working  

overseas in Canada.  It is with such object in  

mind that during the pendency  of the  

proceedings under Section 12 of the Act the  

parties agreed to mediation and  during  

mediation the parties agreed to dissolve their  

marriage by filing a petition under Section 13-

B of the above Act for grant of divorce by  

mutual consent.  In the proceedings before the  

Mediator, the parties agreed to move  

appropriate petitions under Section 13-B(1) and  

13-B(2) of the Act.  A report was submitted by  

the Mediator of the Mediation Centre of the Tis  

Hazari Courts to the Court in the pending HMA  

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No.239 of 2011.   It is pursuant to such  

agreement during the mediation proceedings that  

an application was filed by the parties in the  

aforesaid pending HMA on 15.12.2011 indicating  

that they had settled the matter through the  

mediation centre and that they would be filing  

a petition for divorce by mutual consent on or  

before 15.4.2012.  On the strength of the said  

petition, the HMA proceedings were disposed of  

as withdrawn. Subsequently, on 13.4.2012 the  

parties filed a joint petition under Section  

13-B of the Act on which the order came to be  

passed by the learned Additional District Judge  

-01, West Delhi, fixing the date for the second  

motion on 15.10.2012.

12. It is quite clear from the materials on record  

that although the marriage between the parties  

was solemnized on 26.3.2011, within 3 months of  

the marriage the petitioner filed a petition  

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under Section 12 of the Hindu Marriage Act,  

1955, for a decree of nullity of the marriage.  

Thereafter, they have not been able to live  

together and lived separately for more than 1  

year.  In effect, there appears to be no  

marital ties between the parties at all.  It is  

only the provisions of Section 13-B(2) of the  

aforesaid Act which is keeping the formal ties  

of marriage between the parties  subsisting in  

name only. At least the condition indicated in  

Section 13-B for grant of a decree of  

dissolution of marriage by the mutual consent  

is present in the instant case.  It is only on  

account of the statutory cooling period of six  

months that the parties have to wait for a  

decree of dissolution of marriage to be passed.

13. In the above circumstances, in our view, this  

is one of those cases where we may invoke and  

exercise the powers vested in the Supreme Court  

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under Article 142 of the Constitution.  The  

marriage is subsisting by a tenuous thread on  

account of the statutory cooling off period,  

out of which four months have already expired.  

When it has not been possible for the parties  

to live together and to discharge their marital  

obligations towards each other for more than  

one year, we see no reason to continue the  

agony of the parties for another two months.

14. We, accordingly, allow the appeal and also  

convert the pending proceedings under Section  

12 of the Hindu Marriage Act, 1955, before the  

Additional District Judge-01, West Delhi, into  

one under Section 13-B of the aforesaid Act and  

by invoking our powers under Article 142 of the  

Constitution, we grant a decree of mutual  

divorce to the parties and direct that the  

marriage between the parties shall stand  

dissolved by mutual consent. The proceedings  

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before the Additional District Judge-01, West  

Delhi, being HMA No.204 of 2012, is withdrawn  

to this Court on consent of the parties and  

disposed of by this order.

15. In the facts of the case, the parties shall  

bear their own costs.

………………………………………………………J.    (ALTAMAS KABIR)

………………………………………………………J.    (J. CHELAMESWAR)

New Delhi Dated:22.8.2012.

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