Citations: Amardeep Singh Vs Harveen Kaur, AIR 2017 SC 4417
Date of Judgement: 12/09/2017
Equivalent Citation: 2017 (8) SCC 746; 2017 (9) JT 106
Case no: Civil Appeal no. 11158 of 2017 (Arising out of Special Leave Petition No. 20184 of 2017)
Case Type: Civil Appeal.
Petitioner: Amardeep Singh
Respondent: Harveen Kaur
Bench: Uday Umesh Lalit, Adarsh Kumar Goel, Hon’ble J.J.
- Constitution of India, 1949; Article 142
- Hindu Marriage Act, 1955; Sections 13B(1) & 13B(2)
- Nikhil Kumar Vs Rupali Kumar 1 (2016) 13 SCC 383;
- Manish Goel Vs Rohini Goel, 2010;
- Prem Chand Garg Vs Excise Commissioner AIR 1963 996;
- Supreme Court Bar Association of India Vs Union of India 1998 4 SCC 409;
- K. Om Prakash Vs K. Nalini (AIR 1986 AP 1679 (DB));
- Roopa Reddy Vs Prabhakar Reddy AIR 1994 Kant 12;
- Dhanjit Vadra Vs Beena Vadra ( AIR 1990 Del 146 );
- Dinesh Kumar Shukla Vs Smt. Neeta (AIR 2005 MP 106 (DB)).
- On 16.01.2001, the Appellant (Amardeep Singh) got married to the Respondent (Harveen Kaur). Out of their wedlock, two children were born in 1995 and 2003 respectively. Some disputes arose between them, and since 2008 the couple started living separately.
- On 28 .04.2017, finally, a settlement was made, and the parties decided to seek divorce by mutual consent since no hope to reconcile was left. The wife was awarded Permanent alimony of the amount of Rs 2.75 crore by the appellant.
- Two cheques amount of Rs. 50,00,000 each was duly honored in favor of the wife by the appellant. The custody of the children was with the appellant.
- On 8.05.2017, the Appellant filed a petition before the Family Court of Tis Hazari Court, New Delhi seeking the court to grant a divorce decree on the ground of mutual consent. Further, the statements made by both parties were recorded.
- Subsequently, both the parties to the case pleaded for the waiver of six months for the second motion on the ground that they have been living separately for more than eight years and there is no hope for their reconciliation.
- In this petition filed before the Hon’ble Supreme Court, the parties pleaded that the statutory period of six months prescribed for the second motion should be relaxed given the previous decisions made by the apex Court in the concerned matter.
- Whether the exercise of Article 142 of the Indian Constitution to waive the minimum waiting period of six months under Section 13B(2) mandatory or directory?
- Whether the exercise of power under Article 142 of the Constitution to waive the statutory period under Section 13B(2) of the Hindu Marriage Act, 1955 appropriate?
Contention of Petitioner/Appellant:
- It was contended that the court should apply the power provided under Article 142 to relax six months prescribed under Section 13B (2) of the Hindu Marriage Act.
- Moreover, there was no chance of any reconciliation between the parties. Using the power under Article 142 will save the parties from further agony.
- It was contended that the court in the suit of Nikhil Kumar Vs Rupali Kumar has previously waived the statutory period of six months exercising power under Article 142 of the Constitution.
- Also, in the case, Anjana Kishore Vs Puneet Kishore, the court dealing with the matter of transfer petition waived six months under Article 142, the parties came to a settlement.
- The Learned amicus also submitted (appointed by the court in this matter) that the period prescribed under Section 13B (2) of the Act is a directory and can be relinquished by the court in exceptional situations. Section 13B(2) is merely procedural.
- It was contended by the amicus that if the parties are living separately for a period of more than a year and there is no chance of resuming cohabitation then the discretion to waive the period can be considered in the interest of justice by the court.
Contention of Respondent:
- The Respondent contended that the court should apply the power provided under Article 142 to relax six months prescribed under Section 13B (2) of the Hindu Marriage Act.
- The parties were living separately for the last eight years, and there lies no chance for reconciliation between them. So, the interim period should be set aside.
- The power provided to the court under Article 142 to waive the statutory period is directive in nature.
- Hence the honorable court, in this instant plea should waive the statutory waiting period to avoid further agony of the parties caused by unnecessary delay in reaching the settlement.
- It was observed by the court that the parties had been living separately for more than one year and there lies no scope for the parties to get back together.
- As such the minimum statutory period of six months provided under Section 13B(2) of the Hindu Marriage Act is creating problems for the parties to start their life afresh.
- In this regard, the Hon’ble Supreme Court held that in deciding whether the provision under Section 13B(2) is mandatory or directory, the following points must be considered:
- That the period of six months provided under Section 13B (2) in addition to the period of one year is completed before filing the first motion.
- Option of Mediation /conciliation including the option to settle in terms of provision of Order XXXIIA Rule 3, Code of Civil Procedure, and Section 9 of Family Court have been used and there is no chance of further effort.
- Parties to the marriage have settled the matters of alimony, custody of children, or any other issues.
- The waiting period will cause hindrance for further settlement.
- The application for a waiver is to be filed one week after the first motion specifying the reasons for the waiver.
- It was held by the court that on the fulfillment of the above-stated conditions, the waiting period for the second motion can be waived at the discretion of the court. Hence, the period prescribed for waiting under Section 13B(2) is not mandatory but a directory.
- Also, the parties can move the court for fresh consideration after the order.
The appeal thus stands disposed of.
- In deciding, the above-stated matter reliance was placed on the previously made decision by the Court. In the decision of Nikhil Kumar Vs Rupali Kumar, the minimum statutory period of six months as provided under Section 13 B (2) was waived by the court.
- Generally, no court has the authority to issue directions in contravention of any statutory provision.
- But the court pointed out that the exercise of Article 142 can be done only when the Court is satisfied that the marriage is broken irretrievably and there is no further option of any settlement between them.
- This provision can also be applied to save the parties from further agony and provide them with the liberty to live independently.
- Thus the provision under Section 13B(2) is directive and procedural in nature and can be waived by the court in pending proceedings in exceptional circumstances.
- The question of waiving the period is at the discretion of the court after being satisfied with the relevant facts, circumstances, and contention of parties of the case.
To conclude, it can be said that the provision of Section 13B(2) of the Hindu Marriage Act is directive. The exercise of power under Article 142 of the Constitution to waive off the minimum waiting period to seek divorce on the ground of mutual consent depends on the discretion of the court provided there is no possibility of parties resuming rehabilitation.
Drafted By: Shivani Tiwary, School of Law DAVV.
Published On: September 16, 2021, at 20:10 IST