REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11158 OF 2017 (Arising out of Special Leave Petition (Civil)No. 20184 of 2017)

Amardeep Singh …Appellant

Versus

Harveen Kaur …Respondent

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. The question which arises for consideration in this appeal is

whether  the  minimum  period  of  six  months  stipulated  under

Section 13B(2) of the Hindu Marriage Act,  1955 (the Act) for a

motion  for  passing  decree  of  divorce  on  the  basis  of  mutual

consent  is  mandatory  or  can  be  relaxed  in  any  exceptional

situations.

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2. Factual  matrix  giving  rise  to  this  appeal  is  that  marriage

between the parties took place on 16th January,  1994 at Delhi.

Two children  were  born  in  1995  and 2003  respectively.   Since

2008  the  parties  are  living  separately.   Disputes  between  the

parties gave rise to civil and criminal proceedings.  Finally, on 28 th

April, 2017 a settlement was arrived at to resolve all the disputes

and seeks divorce by mutual consent.  The respondent wife is to

be given permanent alimony of Rs.2.75 crores.  Accordingly, HMA

No. 1059 of 2017 was filed before the Family Court (West),  Tis

Hazari Court, New Delhi and on 8th May, 2017 statements of the

parties were recorded.  The appellant husband has also 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.   They 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 this Court on the ground that only this Court can

relax the six months period as per decisions of this Court.

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3. Reliance has been placed inter alia on decision of this Court

in  Nikhil Kumar  vs.  Rupali Kumar1 wherein the statutory

period of six months was waived by this Court under Article 142

of the Constitution and the marriage was dissolved.  

The text of Section 13B is as follows:

“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.

(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.”

4. There is conflict of decisions of this Court on the question

whether  exercise  of  power  under  Article  142  to  waive  the

statutory period under Section 13B of the Act was appropriate.  In

1  (2016) 13 SCC 383

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Manish Goel versus Rohini Goel2,  a Bench of two-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

filing the second motion under Section 13B, as doing so will be

passing an order in contravention of a statutory provision.  It was

observed :

“14. Generally,  no  court  has  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.  (Vide  State  of  Punjab v.  Renuka Singla[(1994) 1 SCC 175],  State of U.P. v.  Harish Chandra [(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SC 560]  

15. A Constitution Bench of this Court in  Prem Chand Garg v. Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p. 1002, para 12)

“12. … An order which this Court can make in order to do complete  justice  between  the  parties,  must  not  only  be consistent with the fundamental  rights guaranteed by the Constitution,  but  it  cannot  even  be  inconsistent  with  the substantive provisions of the relevant statutory laws.”

(emphasis supplied)

The Constitution Benches of this Court in Supreme Court Bar Assn. v.  Union  of  India  [(1998)  4  SCC  409]  and  E.S.P. Rajaram v. Union of India [(2001) 2 SCC 186] held that under Article 142 of the Constitution, this Court cannot altogether ignore  the  substantive  provisions  of  a  statute  and  pass orders  concerning  an  issue  which  can  be  settled  only

2  (2010) 4 SCC 393

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through a mechanism prescribed in another statute. It is not to be exercised in  a case where there is  no basis  in  law which can form an edifice for building up a superstructure.”

5. This  Court  noted  that  power  under  Article  142  had  been

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 exercised to put quietus

to all litigations and to save the parties  from further agony3.  This

view was reiterated in Poonam versus Sumit Tanwar4.

6. In  Neeti  Malviya  versus  Rakesh  Malviya5,  this  Court

observed that  there  was  conflict  of  decisions  in  Manish Goel

(supra) and  Anjana Kishore versus Puneet Kishore6.   The

matter was referred to bench of three-Judges.  However, since the

matter became infructuous on account of grant of divorce in the

meanwhile7.  

3  Para 11 ibid, noting earlier decisions in Romesh Chander  v.  Savitri (1995) 2 SCC 7; Kanchan Devi  v.  Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal v.  Anil Sabharwal (1997) 11 SCC 490;  Ashok Hurra  v.  Rupa Bipin Zaveri  (1997) 4 SCC 226;  Kiran  v.  Sharad Dutt  (2000)10 SCC 243;  Swati Verma  v.  Rajan Verma (2004) 1 SCC 123;  Harpit Singh Anand  v.  State of W.B.  (2004) 10 SCC 505;  Jimmy Sudarshan  Purohit   v.   Sudarshan  Sharad  Purohit  (2005)  13  SCC  410;  Durga Prasanna Tripathy  v.  Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli  v.  Neelu Kohli (2006) 4 SCC 558; Sanghamitra Ghosh  v.  Kajal Kumar Ghosh (2007) 2 SCC 220; Rishikesh Sharma  v.  Saroj  Sharma (2007) 2 SCC 263; Samar Ghosh v.  Jaya Ghosh (2007) 4 SCC 511 and Satish Sitole  v.  Ganga (2008) 7 SCC 734  4  (2010) 4 SCC 460 5  (2010) 6 SCC 413 6  (2002) 10 SCC 194 7  Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007

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7. Without  any  reference  to  the  judgment  in  Manish  Goel

(supra),  power under Article 142 of the Constitution has been

exercised by this Court in number of cases8 even after the said

judgment.

8. We find that  in  Anjana Kishore (supra),  this  Court  was

dealing  with  a  transfer  petition  and  the  parties  reached  a

settlement.  This Court waived the six months period under Article

142 in the facts and circumstances of the case.   In Anil Kumar

Jain versus Maya Jain9, one of the parties withdrew the consent.

This Court held that marriage had irretrievably broken down and

though  the  civil  courts  and  the  High  Court  could  not  exercise

power  contrary  to  the  statutory  provisions,  this  Court  under

Article 142 could exercise such power in the interests of justice.

Accordingly the decree for divorce was granted.

8  Priyanka  Singh  v.  Jayant  Singh(2010)  15  SCC  390;  Sarita  Singh  v. Rajeshwar Singh (2010) 15 SCC 374;  Harpreet Singh Popli v. Manmeet Kaur Pople (2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234; Veena v. State (Govt of NCT of Delhi) (2011) 14 SCC 614;  Priyanka Khanna v. Amit Khanna (2011) 15 SCC 612;  Devinder Singh Narula v. Meenakshi Nangia (2012) 8 SCC 580; Vimi Vinod Chopra v. Vinod Gulshan Chpra (2013) 15 SCC 547;  Priyanka Chawla v. Amit Chawla (2016) 3 SCC 126; Nikhil Kumar v. Rupali Kumar (2016)  13 SCC 383 9  (2009) 10 SCC 415

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9. 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.

10. However, we find that the question whether Section 13B(2)

is to be read as mandatory or discretionary needs to be gone into.

In  Manish Goel (supra),  this question was not gone into as it

was not raised.  This Court observed :

“23. The learned counsel for the petitioner is not able to advance arguments  on the issue as to whether,  statutory period  prescribed  under  Section  13-B(1)  of  the  Act  is mandatory or directory and if  directory,  whether could be dispensed with  even by the  High Court  in  exercise  of  its writ/appellate jurisdiction.”

11. Accordingly, vide order dated 18th August, 2017, we passed

the following order :

“List the matter on 23rd August, 2017 to consider the question whether provision of Section 13B of the Hindu Marriage, Act, 1955  laying  down  cooling  off  period  of  six  months  is  a mandatory requirement or it  is  open to the Family Court to

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waive the same having regard to the interest of justice in an individual case.  

Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus to  assist  the  Court.  Registry  to  furnish  copy  of  necessary papers to learned Amicus”.

12. Accordingly, learned  amicus curiae has assisted the Court.

We record our gratitude for the valuable assistance rendered by

learned  amicus who has been ably assisted by S/Shri  Abhishek

Kaushik, Vrinda Bhandari and Mukunda Rao Angara, Advocates.   

13. Learned  amicus submitted  that  waiting  period  enshrined

under Section 13(B)2 of the Act is directory and can be waived by

the  court  where  proceedings  are  pending,  in  exceptional

situations.   This view is supported by judgments of the Andhra

Pradesh  High  Court  in   K.  Omprakash   vs.   K.  Nalini10,

Karnataka  High  Court  in  Roopa  Reddy   vs.   Prabhakar

Reddy11,  Delhi High Court in  Dhanjit Vadra  vs.  Smt. Beena

Vadra12 and  Madhya  Pradesh  High  Court  in  Dinesh  Kumar

Shukla  vs.  Smt. Neeta13.  Contrary view has been taken by

Kerala  High  Court  in  M.  Krishna  Preetha   vs.   Dr.  Jayan

10  AIR 1986 AP 167 (DB) 11  AIR 1994 Kar 12 (DB) 12  AIR 1990 Del 146 13  AIR 2005 MP 106 (DB)

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Moorkkanatt14. It was submitted that Section 13B(1) relates to

jurisdiction of the Court and the petition is maintainable only if

the parties are living separately for a period of one year or more

and if they have not been able to live together and have agreed

that the marriage be dissolved.  Section 13B(2) is procedural.  He

submitted  that  the  discretion  to  waive  the  period  is  a  guided

discretion by consideration of interest of justice where there is no

chance of reconciliation and parties were already separated for a

longer period or contesting proceedings for a period longer than

the period mentioned in Section 13B(2).  Thus, the Court should

consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are  there  any  other  proceedings  between  the parties?

v) Have the parties attended mediation/conciliation?

vi) Have  the  parties  arrived  at  genuine  settlement which takes care of alimony,  custody of child or any other pending issues between the parties?

14  AIR 2010 Ker 157

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14. The  Court  must  be  satisfied  that  the  parties  were  living

separately for more than the statutory period and all  efforts at

mediation and reconciliation have been tried and have failed and

there is no chance of reconciliation and further waiting period will

only prolong their agony.

15. We  have  given  due  consideration  to  the  issue  involved.

Under the traditional Hindu Law, as it stood prior to the statutory

law  on  the  point,  marriage  is  a  sacrament  and  cannot  be

dissolved  by  consent.   The  Act  enabled  the  court  to  dissolve

marriage on statutory grounds. By way of amendment in the year

1976, the concept of divorce by mutual consent was introduced.

However, Section 13B(2) contains a bar to divorce being granted

before  six  months  of  time  elapsing  after  filing  of  the  divorce

petition by mutual  consent.   The said period was laid down to

enable  the  parties  to  have  a  rethink  so  that  the  court  grants

divorce  by  mutual  consent  only  if  there  is  no  chance  for

reconciliation.

16. The  object  of  the  provision  is  to  enable  the  parties  to

dissolve a marriage by consent if the marriage has irretrievably

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broken  down  and  to  enable  them to  rehabilitate  them as  per

available options.  The amendment was inspired by the thought

that  forcible  perpetuation  of  status  of  matrimony  between

unwilling partners did not serve any purpose.  The object of the

cooling off the period was to safeguard against a hurried decision

if there was otherwise possibility of differences being reconciled.

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.

17. In determining the question whether provision is mandatory

or directory, language alone is not always decisive.  The Court has

to have the regard to the context,  the subject  matter  and the

object of the provision.  This principle, as formulated in Justice G.P.

Singh’s  “Principles of  Statutory Interpretation” (9th Edn.,  2004),

has been cited with approval in Kailash  versus  Nanhku and

ors.15as follows: 15  (2005) 4 SCC 480

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“The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is  not decisive,  and regard must be had to the context, subject-matter and object  of  the  statutory  provision  in  question,  in determining  whether  the  same  is  mandatory  or directory.  In  an  oft-quoted  passage  Lord  Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only  or  obligatory  with  an  implied  nullification  for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending  to  the  whole  scope  of  the  statute  to  be considered.’

“  ‘For  ascertaining  the  real  intention  of  the legislature’,  points  out  Subbarao,  J.  ‘the  court  may consider  inter  alia,  the  nature  and  design  of  the statute,  and  the  consequences  which  would  follow from  construing  it  the  one  way  or  the  other;  the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for  a  contingency  of  the  non-compliance  with  the provisions; the fact that the non-compliance with the provisions  is  or  is  not  visited  by some penalty;  the serious  or  the  trivial  consequences,  that  flow therefrom; and above all,  whether the object of the legislation will be defeated or furthered’. If  object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by  holding  it  mandatory  serious  general inconvenience  will  be  created  to  innocent  persons without very much furthering the object of enactment, the same will be construed as directory.”  

18. Applying the above to the present situation, we are of

the  view  that  where  the  Court  dealing  with  a  matter  is

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satisfied  that  a  case  is  made  out  to  waive  the  statutory

period under Section 13B(2), it  can do so after considering

the following :

i) 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;  

ii) 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;

iii) the parties have genuinely settled their differences

including  alimony,  custody  of  child  or  any  other

pending issues between the parties;  

iv) the waiting period will only prolong their agony.

19.     The waiver application can be filed one week after the

first motion giving reasons for the prayer for waiver.

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20.     If the above conditions are satisfied, the waiver of the

waiting period for the second motion will be in the discretion

of the concerned Court.   

21.     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.   

22.     Needless to say 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 such as parents or siblings where the

parties are unable to appear in person for any just and valid

reason as may satisfy the Court, to advance the interest of

justice.

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23.    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.

…………………………………..J. (ADARSH KUMAR GOEL)

…………………………………..J. (UDAY UMESH LALIT)

NEW DELHI; SEPTEMBER 12, 2017.   

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ITEM NO.1502               COURT NO.11               SECTION XIV     (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                

RECORD OF PROCEEDINGS Civil Appeal  No(s).  11158/2017 AMARDEEP SINGH                                     Appellant(s)                                 VERSUS HARVEEN KAUR                                       Respondent(s) Date : 12-09-2017 This appeal was called on for pronouncement of  judgment today. For Appellant(s) Mr. T. R. B. Sivakumar, AOR For Respondent(s)                             Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the judgment of  the  Bench  comprising  His  Lordship  and  Hon'ble  Mr.  Justice  Uday Umesh Lalit.                                              

The  appeal  is  disposed  of  in  terms  of  the  signed  reportable judgment.

 (SWETA DHYANI)                         (PARVEEN KUMARI PASRICHA)   SENIOR PERSONAL ASSISTANT                      BRANCH OFFICER      

(Signed reportable judgment is placed on the file)  

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