In a recent decision of Amardeep Singh vs. Harveen Kaur,1 the apex court had a chance to interpret the law regarding mandatory 'cooling off' period in cases of divorce by mutual consent of the parties described under sec. 13B(2) of the Hindu Marriage Act, 1955.
In the present case, the parties were living separately for past 8 years and arrived at a settlement for all the disputes between them before filing the petition for divorce. It was sought from them that since the parties have already arrived at settlement, there is no need for them to wait for another six months as required under the section.
In the past, the Supreme Court has given waiver to parties for this 'cooling period' but these cases have been exceptional. The question posed before the court was that whether courts can give relaxation to parties with regard to the 6-month waiting period mentioned under the section without placing reliance on Art. 142 of the Constitution. If the provisions are not mandatory, then there is no need for the courts to apply Art. 142 for waiving off this period.
INTERPLAY BETWEEN ART. 142 AND STATUTORY PROVISIONS OF A LEGISLATION
While arriving at the decision, the court initiated the discussion on the interplay between Art. 142 of the Constitution and the statutory provisions of a legislation. The court cited several decisions of its own court where it was held that Art. 142 cannot be used to subvert or evade the scope of substantive provision of a statute. The power granted under the Article should only be used in certain exceptional circumstances.
The court also examined certain cases where this cooling period was waived because the court felt that the marriage has broken down irretrievably and the waiting period will only cause mental agony to the parties.
In its conclusion, the court held that the correct law has been laid down in Manish Goelv. Rohini Goel,2 stating that jurisdiction of the Supreme Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion Under Section 13B, asdoingsowillbepassinganorderincontravention of a statutory provision. 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.
DISCUSSION ON NATURE OF SEC. 13B (2)
In further discussion, the court went on to examine that whether the period mentioned under the section is mandatory or directory for the courts.
It was understood by the court that under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is sacred 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.
The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably 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 period was to safeguard against a hurried decision if there was otherwise a possibility of differences being reconciled. 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. The period mentioned in Section 13B(2) was not mandatory but directory, it would be open to the Court to exercise its discretion in the facts and circumstances of each case where there was no possibility of parties resuming cohabitation and there were chances of alternative rehabilitation.
COURT'S FINAL DECISION
If the Court dealing with a matter is satisfied that a case is made out to waive the statutory period Under Section 13B (2), it can do so 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 13B(1) of separation of parties is already over before the first motion itself;
- All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/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;
- 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.
The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the concerned Court. 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.
1 Amardeep Singh vs. Harveen Kaur (12.09.2017 - SC): MANU/SC/1134/2017
2 MANU/SC/0106/2010: (2010) 4 SCC 393
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