Introduction
In a judgement pronounced in 2017, the Hon’ble Supreme Court of India addressed a crucial question regarding the minimum period for obtaining a divorce by mutual consent under the Hindu Marriage Act, 1955. The court examined whether the mandatory six-month waiting period prescribed under Section 13B(2) of the Act can be relaxed in exceptional circumstances. This landmark judgement, which arose from Civil Appeal No. 11158 of 2017, provides important insights into the interpretation and application of the law in cases of divorce by mutual consent.
Background
The case involved a couple, Amardeep Singh and Harveen Kaur, who had been living separately since 2008. After reaching a settlement to resolve their disputes, the couple filed a petition seeking divorce by mutual consent. They requested the waiver of the six-month waiting period for the second motion, citing the extended period of separation and the unlikelihood of reconciliation. The appellant also argued that previous court decisions had allowed for the relaxation of the statutory period.
Conflicting Decisions
The Supreme Court noted that there were conflicting decisions on whether the court could exercise its power under Article 142 of the Constitution to waive the mandatory waiting period specified in Section 13B(2) of the Act. In the case of Manish Goel versus Rohini Goel, a two-judge bench held that such power should not be used to contravene a statutory provision. The court emphasized that it should not pass orders or directions contrary to the law. However, subsequent decisions had exercised this power in cases where the marriage was deemed irretrievably broken.
The Court's Decision
After considering the conflicting precedents, the Supreme Court held that in the absence of contrary decisions by a larger bench, the power under Article 142 could not be exercised contrary to the statutory provisions. The court emphasized that the power under Article 142 had been used to address cases where the marriage was unworkable, emotionally dead, and beyond salvage. However, the court acknowledged that the question of whether Section 13B(2) was mandatory or discretionary needed further examination.
Examining Section 13B(2)
The Supreme Court highlighted that the question of whether Section 13B(2) is mandatory or discretionary had not been addressed in the earlier Manish Goel judgement. The court appointed an amicus curiae to assist in examining this issue. The amicus curiae argued that the waiting period was directory and could be waived in exceptional situations, provided there was no chance of reconciliation and the parties had already been separated for a significant period.
Guidelines for Discretionary Waiver
The amicus curiae proposed guidelines for the court to consider when exercising its discretion to waive the waiting period:
- Duration of marriage: The court should consider the length of the parties’ marriage.
- Duration of litigation: The court should examine the length of the ongoing legal proceedings
- Duration of separation: The court should assess how long the parties have been living apart.
- Other proceedings: The court should take into account any other pending legal proceedings between the parties.
- Mediation/conciliation efforts: The court should consider whether the parties have attended mediation or conciliation sessions.
- Genuine settlement: The court should determine whether the parties have reached a genuine settlement that addresses issues such as alimony and child custody.
Conclusion
In this significant judgement, the Hon’ble Supreme Court of India clarified that, in the absence of contrary decisions, the statutory waiting period for divorce by mutual consent cannot be waived by exercising the court’s power under Article 142. However, the court recognized the need to further examine whether Section 13B(2) is mandatory or discretionary. The proposed guidelines provided by the amicus curiae for exercising discretion in waiving the waiting period offer a framework for future cases. This judgement brings clarity to the legal landscape surrounding divorce by mutual consent and underscores the importance of statutory provisions in family law matters.
