AMARDEEP SINGH versus HARVEEN KAUR

The question which arises B 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.

p. 929

Factual matrix giving rise to this appeal is that marriage between the parties took place on l 6 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 April, 2017 a settlement was arrived at to resolve all the disputes and seeks divorce by mutual consent. The D ·respondent wife is to be given permanent alimony of Rs.2. 7 5 crores. Accordingly, HMA No. 1059of2017 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, E 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 F can relax the six months period as per decisions of this Court.

p. 929

Reliance has been placed interalia on decision of this Court in Nikhil Kumar vs. Rupali Kumar wherein the statutory period of six months was waived by this Court under Article 142 of the Constitution and the marriage was dissolved. G · 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 sec 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."

pp. 929–930

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 I 3B of the Act was appropriate. In Manis/1 Goel Rohini Goe/ 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 13 B, 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 Renuka Singla[(f 994) I SCC 175), State of U.P. Harish Chandra [(1996) 9 SCC 309), Union of India Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453), University of Allahabad Dr. Anand Prakash Mishra [(1997) JO SCC 264) and Karnataka SRTC v. Ashrafu/la 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 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 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. "

pp. 930–931, margin D

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 agony This view was reiterated in Poonam versus Sumit Tanwar'.

p. 931, margin D

In Neeti Malviya versus Rakesh Malviya this Court observed that there was conflict of decisions in Manish Goel (supra) and Anjana Kishore versus Puneet Kishore6. The matter was Para ibid, noting earlier decisions of sec sec referred to bench of three-Judges. However, since the matter became infructuous on account of grant of divorce in the meanwhile

pp. 931–932, margin E

Without any reference to the judgment in Manish Goel (supra), under Article 142 Qf the Constitution has been exercised by this in riillnber of cases even after the said judgment.

p. 932, margin A

We find that itiAnjana Kishore (supra), this Court was dealing 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 Jain', the parties withdrew the consent. This Court held that marriage irretrievably broken down and though the civil courts and the High could not exercise power contrary to the statutory provisions, this under Article 142 could exercise such power in the interests of justice. Accordingly the decree for divorce was granted.

p. 932, margin A

After considering the above decisions, we are of the view that Manish Goel (supra) holds the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the Constitution be exercised contraty to the statutory provisions, especially when proceedings are pending before this Court and this Court is approached for the plltpose <1f waiver of the statute.

p. 932, margin C

However, we find that the question whether Section 13B(2) is read as mandatory or discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as it was not 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(J) of the Act is mandatory or Order dated August, Transfer Petition (Civil)No. of2007 390; ~2010) 374; (2010) 316; (2011) 234; of of (2011) 614; (2012) 8 580; (2013) (2016)3 126; (2016) SCC sec 415 directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction. "

pp. 932–933, margin E

Accordingly, vi de order dated 18th Au~st, 20 l 7i we passed following order : · · . . . . "List the matter on 23rd August, 2017 to consider the:'(Juestitm whether provision of Section 13B of the Hindu Ma'rriage, Act, 1955 laying dOWfl COO/ing off period of six monf/js'·iS a mandatory requirement or it is open to the Family Court to waive the same having regard to the interest of justice in an individual case. Mr. K. Vishwanathan, senior counsel is appointed as Amicus to assist the Court. Registry to furnish copy of necessary papers to learned Amicus ".

p. 933, margin A

Accordingly, learned amicus curiae has assisted the Court. record our gratitude for the valuable assistance rendered by learned amicus who has been ably assisted by S/ShriAbhishekKausliik, Vrinda Bhandari and Mukunda Rao Angara, Advocates. · "

p. 933, margin C

Learned amicus submitted that waiting perio4.~~sh,rirre;4 under Section l 3(B)2 of the Act is directory and can be waiveg by tlie court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court K. Omprakash vs. K. Nalini Karnataka High Court in Roopa Reddy Prabhakar Reddy", Delhi High Court in Dhanjit Vadra vs. Smt. Reena Vadra and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta Contrary view has been taken by Kerala 'High Court in M. Krishna Preetha ·vs. Dr. Jayan Moorkkanatt !twas submitted that Section 13B{l) relates to jurisdiction of the Court the petition is maintainable only if the parties are living separately 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 l 3B(2) procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no were already separated for a longer a period longer than the period the Court should consider been married? pending? been staying apart? proceedings between the parties? attended mediation/conciliation? arrived at genuine settlement which custody of child or any between the parties?

pp. 933–934, margin D

The Court must be satisfied that the parties were living period and all efforts at mediation have failed and there is no chance period will only prolong their agony. consideration to the issue involved. Under prior to the statutory law on cannot be dissolved by consent. marriage on statutory grounds. the concept of divorce by mutual Section 13B(2) contains a bar months of time elapsing after filing consent. The said period was laid so that the court grants divorce chance for reconciliation.

p. 934, margin C

The object of the provision is to enable the parties to dissolve has irretrievably broken down as per available options. thought that forcible perpetuation of partners did not serve any purpose. period was to safeguard against otherwise possibility of differences perpetuate a purposeless marriage when there was no chance of has to be made to save a marriage, and there are chances of rehabilitation, the Court should not be powerless in enabling the parties have a better option.

pp. 934–935, margin F

In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice GP. Singh's "Principles of Statutory Interpretation" (9th Edn., 2004), has been cited with approval Kai/ash versus Na11hku a11d ors.'5as follows: "The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language a/One 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 noncompliance with the provisions; the fact that the noncompliance 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. "

p. 935, margin A

Applying the above to the present situation, we are of the where the Court dealing with a matter is satisfied that a case out to waive the statutory period under Section 13B(2), it can after considering the following : the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section l 3B( 1) separation of parties is already over before the first motion itself; efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 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; the waiting period will only prolong their agony.

p. 936, margin A

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

p. 936, margin D

If the above conditions are satisfied, the waiver of the waiting the second motion will be in the discretion of the concerned

p. 936, margin E

Since we are of the view thatthe period mentioned in Section not mandatory but directory, it will be open to the Court to its discretion in the facts and circumstances of each case where no possibility of parties resuming cohabitation and there are of alternative rehabilitation.

p. 936, margin F

Needless to say that in conducting such proceedings the Court use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or 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.

p. 936, margin G

The parties are now at liberty to move the concerned court A for fresh consideration in the light of this order. The appeal is disposed of accordingly.

p. 937