Statutory Period of six months can be waived in Mutual Consent divorce By Supreme Court of India,

 

Statutory Period of six months can waived in Mutual Consent divorce By Supreme Court of India,    

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Divorce by mutual consent is the fastest way or procedure of getting divorce in India. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year. Divorce by mutual consent is fastest because parties can get divorce in six months only and can be shortened if the parties are living separately since long time spam. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under under following Acts which very according to law applicable to parties:-

Sec. 13-B of The Hindu Marriage Act.

Sec. 28 of The Special Marriage Act.

Sec.10-A of The Indian Divorce Act.

The procedure for seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, before filling petition are custody of child, alimony to wife, return of dowry items or “Istreedhan” and litigation expenses which should be mentioned in their petition for divorce by mutual consent,.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an inquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties

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 In The Matter of Amardeep Singh   Vs    Harveen Kaur     the Hon’ble Supreme Court held that:-                               …

It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for 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 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

  1. i)     How long parties have been married?
  2. ii)    How long litigation is pending?

iii) How long they have been staying apart?

  1. iv) Are there any other proceedings between the parties?
  2. v) Have the parties attended mediation/conciliation?
  3. vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 AIR 2010 Ker 157

The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament 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 the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. 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.

In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480
“The study of numerous cases on this topic does not lead to formulation of any universal rule except this 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. 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 non-compliance with the provisions; the fact that the non-compliance 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.”

Applying the above to the present situation, we are of the view that where 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 :

  1. i) 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;
  2. ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/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;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

  1. iv) 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 in the discretion of the concerned Court.

Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

. Needless to say that in conducting such proceedings 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.
The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11158 OF 2017

(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)

Amardeep Singh                                              …Appellant

Versus

Harveen Kaur                                                …Respondent

 

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waived off waiting-cooling period of six months in mutual consent divorce by supreme court.

. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.

mutual divorce

Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.

In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 4490 OF 2016

(Arising out of SLP (c) No.12161 of 2016)

 

NIKHIL KUMAR                                       Appellant

VERSUS

RUPALI KUMAR                                          Respondent

J U D G M E N T

KURIAN,J.

 

  1. Leave granted.
  1. The appellant and respondent have filed the petition under Section 13- B(1) of the Hindu Marriage Act, 1955 before the Family Court (Principal Judge, Family Court, Tiz Hazari District Courts), Delhi. The parties were married on 07.02.2011 according to the customary rights. It is submitted that they have not been able to workout their marriage as husband and wife since day one. For the last around five years, most of the time they have been living separately and their marriage reached a breaking point more than a year back. Both the parties, after giving serious thought on the entire consequences of their decision, have taken a conscious decision to part and accordingly they have filed a petition before the Family Court for divorce on mutual consent on 29.03.2016. The Family Court granted the First Motion on 01.04.2016 and now, the matter is posted in the month of October, 2016.
  1. The respondent has made a travel plan to move to New York on 29.04.2016 seeking a job and resettlement in life, after a long period of traumatic experiences of her married life as stated in the affidavit.
  1. In the above circumstances, the appellant has filed the present appeal praying for waving the six months’ waiting period required under Section 13-B(2) of the Hindu Marriage Act, 1955, invoking our jurisdiction under Article 136 read with Article 142 of the Constitution of India.
  1. The respondent has appeared in person. She was directed to file an affidavit before this Court. The respondent in the affidavit has endorsed the submission that they were not happy ever since their marriage in 2011. It is stated that with the set-back of a broken marriage, the respondent needs a change in environment and thus, she has proposed to move to New York and it would be difficult for her to get back to India after six months or even in the near future. It is further stated that both of them have realized the consequences of their decision and they have taken the decision out of their free will and without any undue influence or coercion.
  2. Both the parties have appeared before the Court. The appellant was born in the year 1984, and is graduate in commerce. He is working as senior manager in a private firm. The respondent was born in the year 1982 and she also is a graduate.
  3. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.
  4. Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.
  5. In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.
  6. The Registry to communicate a copy of this judgment to the Family Court forthwith.
  7. The appeal is allowed as above. No order as to costs.

…………………..J (KURIAN JOSEPH) …………………..J

(ROHINTON FALI NARIMAN)

NEW DELHI APRIL 27, 2016