Rigidity of Section 13B(2) of The Hindu Marriage Act, 1955 can be compromised by Family Courts

Adarsh Pharasi, BA, LL.B., Amity University, Uttar Pradesh

While settling the conflict between the notion that the judiciary cannot go against statute and the discretionary power of Courts to administer justice, a two judge bench of Justices A.K. Goel and U.U. Lalit held that the six months waiting period prescribed under Section 13B(2) under Hindu Marriage Act for divorce by mutual consent is not mandatory and can be waived by courts under certain circumstances.

Contrary Judgements pertaining to the same issue previously entertained by the Supreme Court

The learned bench dealt with conflicting judgements by the Supreme Court pertaining to the matter. It was held in Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194 that the period can be waived by the Supreme Court in exercise of powers under Article 142 of the Constitution of India and the same was held in recent judgement of Nikhil kumar v. Rupali kumar, (2016) 13 SCC 383, but contrary to the judgement, in Goel v. Rohini Goel (2010) 4 SCC 393 it was held that Article 142 could not be invoked contrary to a statutory prescription.

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

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 solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised 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.”

Article 142 of the Indian Constitution:

Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc:   ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

Article 142 guarantees a tremendous discretionary power to the Supreme Court to do complete justice and the apex court has been highly revered for invoking its power under the said article of the Indian Constitution to bring complete justice to various deprived sections of the society or to protect the environment.

The apex court of India maintained the concept of ‘separation of power’ while deliberating on the question that whether the provision is mandatory

While exercising the power of Article 142 in Union Carbide Case, relating to the victims of the Bhopal Gas Tragedy, the Supreme Court felt the need to deviate from existing laws for the purpose of complete justice to the victims and held that “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.” But, later the said statement was turned down in Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409. It was said therein that the power of apex court enshrined under Article 142 is not to supplant the existing laws, but only to supplement the law. Thereby, the judgement restored the doctrine of ‘separation of power’ which was impliedly refuted in the former case law.

The honourable court in the case in question pointed out that none of the conflicting precedents of Supreme Court cited in the case deliberated upon the question that weather the provision under sec.13b(2) of The Hindu Marriage Act is mandatory. The statement implies that none of the earlier judgements have contemplated that weather the provision is mandatory to be followed by the family courts while dealing in cases pertaining to ‘divorce with mutual consent’.

The honourable court maintained the supremacy of ‘separation of power’ doctrine in the case in question while deliberating on the question that weather the said provision under Hindu Marriage Act, 1955 is mandatory or not. The apex court referred to ‘Principles of Statutory interpretations’ formulated with approval in Kailash v. Nanhku and Ors., (2005) 4 SCC 480 means 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. 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.”

The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155. Therefore, the apex court inferred in the light of the said principle and the intention of the provision as determined in the latter judgement that the couple is living separately since eight years and there is no possibility of reconciliation thus the delay of six months for granting divorce to the petitioners despite the fact that the parties have mutually settled their differences for alimony, custody of children, “will only prolong their agony”.

Provisions laid down in the Judgement

  1. The application for the waiver of the waiting period of six months can be filed one week after the first motion giving reason for the prayer of waiver.
  2. The waiver of the waiting period for the second motion will be in the discretion of the concerned Court concerned to the fact that weather there is no chance of cohabitation between the spouses.
  3. The court can also use video conferencing for proceeding and to permit the representation by the people in close relation where the parties are unable to appear for valid reason.
  4. The parties are at liberty to move to the concerned court in the light of the order passed.



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