Mandatory or cooling period of Six Months in Mutual Consent Divorce u/s 13-B of HMA can be waived off.

Whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its jurisdiction under Article 142 of the Constitution?” This decision is rendered by a three judges’ bench.

The issues before this Constitution Bench, as adumbrated below, arise primarily from the order dated 12.05.2010 passed in T.P. (C) No. 899 of 2007, Neeti Malviya v. Rakesh Malviya, wherein a bench of two judges had doubted the view expressed in Anjana Kishore v. Puneet Kishore1 and Manish Goel v. Rohini Goel2 that this Court, in exercise of the power under Article 142 of the Constitution of India, cannot reduce or waive the period of six months for moving the second motion as stipulated in sub-section (2) to Section 13-B of the Hindu Marriage Act, 1956 3. Noticing that this Court, some High Courts and even family courts in some States had been dispensing with or reducing the period of six months for moving the second motion when there was no possibility whatsoever of the spouses cohabiting, the following question was referred to a three judges’ bench for a clear ruling and future guidance

However, the question was never decided, since T.P. (C) No. 899 of 2007 was rendered infructuous as the parties, subsequent to the order of reference, had dissolved their marriage by mutual consent.

In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.

(iii) Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.

“In view of the decisions of the Hon’ble Court in the above cases, the view of the Hon’ble Court that divorce can be granted on the ground of “irretrievable break-down of marriage” even in the absence of such ground being contemplated by the Legislature may require consideration by the Constitution Bench. Similarly, the issue as to whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its jurisdiction under Article 142 of the Constitution also requires consideration by the Constitution Bench.”

Ref:

SHILPA SAILESH    Vs         VARUN SREENIVASAN                                
TRANSFER PETITION (CIVIL) NO. 1118 OF 2014
                                                      

Whether Divorce can be granted due to broken of marriage or due to ‘irretrievable breakdown of marriage’ ?

In K. Srinivas Rao Vs. D.A. Deepa (2013) 5 Supreme Court Cases 226, it is held that whether the marriage is beyond repair on the ground of bitterness created by the acts of the husband or the wife or both, the courts have always taken irretrievable breakdown of the marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage, which is dead for all purposes cannot be revived by the court’s verdict if the parties are not willing. This is because the marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.

In Darshan Gupta Vs. Radhika Gupta, (2013) 9 Supreme Court Cases 1, the Apex Court has opined that the Apex Court in some cases had dissolved the marriage on the ground of ‘irretrievable breakdown’ but in those cases, the legal position was not taken into consideration and hence, they are not precedents. It is also mentioned in para-’52’ of this judgement that the decree of divorce on the ground of ‘irretrievable breakdown’ of marriage could not be granted for the simple reason that the breakdown was from the side of the husband only. The Apex Court found that where the wife was intensely concerned with her future relationship with her husband and her greatest desire was to rejoin her husband and to live in a normal matrimonial life, in that case the Court cannot proceed to grant decree of divorce.