6 months Cooling, Waiting Period for Divorce under Hindu Law is Not Mandatory!

(A) Dated: 12-09-2017; Apex Court; Supreme Court of India:

The Apex Court relaxed the procedure of granting divorce on the ground of mutual consent by the path breaking judgment that the bench of Adesh Kumar Goyal and U.U. Lalit, pronounced. The bench ruled that; period mentioned in Section 13B (2) of the Hindu Marriage Act, 1955 is not mandatory but directory.

The 6 months cooling off period was to explore reconciliation of differences and was inserted in statue as a safeguard to hurried decision in cases of couples that feel their marriage has irretrievably broken down. Thus there should be no impediment in lower courts to grant the waiver in deserving cases as per laid rules.

(B) Marriage is union of two souls.

It is the joining of two people in a bond that putatively lasts until death.

With marriage spouses and their families and extended families unite to live together. It is a known fact the fissures and differences often occur in relationships and it leaves damaging effect on all parties that are involved. No marriage is free of conflict. What enables a couple to endure is how they handle that conflict.

Every effort should be made by both spouses; families of spouses, society, relatives, mediators, counsels specializing in Family matters, Lawyers, state, marriage councilors, mediation cells, and courts of law to restore the faith in institution of marriage; to save the marriage of warring spouses and every chance of reunion and fresh rehabilitation should be explored. 

There are now only two types of marriages; Successful and Unsuccessful.

For various and unwise reasons marriages are failing.

At times despite the best efforts from all support groups on both sides of spouses and even councilors, mediators, state, courts of law, marriage is to end, as a last recourse with separation. Separation becomes the only relief for litigating spouses and their affected families.

Marriage or wedlock is the state of being united as spouses in a consensual and contractual relationship recognized by law.

Hindu marriage cannot be ended without divorce decree from court of law.

If all possible efforts have failed and matter has landed before of courts of law then courts of law should not be powerless to let both the parties have better options and let them not live with a purposeless married life.

The parties involved in marital discord have been feeling that the procedure of divorce should also be like a clean surgical procedure, swift, less tedious and less time consuming, and spouses and families are not subjected to continued agony.

(C) Central Government Act
Article 142 in The Constitution Of India 1949

142. 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

(D) THE HINDU MARRIAGE ACT, 1955
(Act 25 of 1955) [18th May, 1955]

13-B. 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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 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 mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized 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.

The usual procedure is: The couple approaches District Court with divorce petition detailing that they have been living separately for 1year or more and are not able to live together and have opted to end the marriage thru divorce by mutual consent. Thereafter both spouses have to wait for 6 month before the court hears them and decides.

Only the Apex Court had the power and discretion to waive this cooling off or waiting period of 6 months.

Although many judicial pronouncements covered the aspect, there was indeed a need for a clear ruling from Apex Court that could be followed by lower courts and litigating spouses and their affected families and relatives could seek recourse from  the very 1st court i.;e Distt. Courts/Family Courts.

(i) 1. Swati W/o Ramakant Patil,. 2. Ramakant S/o Ratan Patil, PETITIONERS versus Nil ...RESPONDENT

WRIT PETITION NO. 4528 OF 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
DATED: 7th MAY, 2015

22. The division bench of this court in the decision reported in AIR 2009 Bombay 12 has referred to rationale and reasons underlying the provisions of section 13-B of the Hindu Marriage Act, 1955 and the Supreme Court in the decision reported in (2009)10 Supreme Court Cases 415, has ruled that the Supreme Court can in exercise of extraordinary powers under Article 142 of the Constitution of India convert a proceeding under section 13 of Hindu Marriage Act, 1955 into one under section 13-B of Hindu Marriage Act, 1955 and pass decree of divorce by mutual consent without waiting for the statutory period of six months.

The Supreme Court has also observed that neither civil courts nor even high courts can pass orders before the period prescribed under relevant provisions of the Act or on the grounds not provided for under sections 13 and 13-B of the Hindu Marriage Act, 1955.

(ii) Punjab-Haryana High Court
Pooja Deswal vs Sagar Deswal on 9 June, 2014

'Can the statutory waiting period of six months referred to in sub- section (2) of Section 13-Bof the Act waived/ condoned by the Court?,

is the precise question, to seek an answer to which this petition under Section 115 of the Code of Civil Procedure (Code, for short) has been brought by the petitioner, because the question has been answered in the negative by the Court of learned Additional District Judge, Panchkula (Trial Court, for short) vide order dated 23.05.2014 passed on an application brought by the present petitioner and her co-petitioner under Section 151 of the Code, which was brought by the parties to seek waiver of the staturtory waiting period of six months in a petition for dissolution of marriage of the parties to that petition by mutual consent under Section 13-B of the Act…'

19. The various decisions referred to above merely indicate that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given fact situation by invoking its powers under Article 142 of the Constitution, but in normal circumstances the provisions of the statute have to be given effect to. The law as explained in Smt. Sureshta Devi's case (supra) still holds good, though with certain variations as far as the Supreme Court is concerned and that too in the light of Article 142 of the Constitution." The position of law as adumbrated in Anil Kumar Jain vs. Maya Jain (Supra) has been reiterated in Manish Goel vs. Rohini Goel, 2010(2) RCR (Civil) 194.

In view of the above, the question posed in the beginning is answered in the negative and the impugned order passed by the learned Additional District Judge, Panchkula, is found to call for no interference.

Resultantly, the revision petition fails and is dismissed.'

(iii) Rajasthan High Court - Jodhpur
Girdhari Maheshwari & Anr vs Nil on 24 September, 2008

Two years have passed said recommendation yet law had not been changed so as to incorporate the irretrievable breakdown of marriage as ground for divorce in the Hindu Marriage Act, 1955. Be it is it maybe, even if irretrievable breakdown of marriage will be considered as ground for divorce even then basic ingredients for irretrievable breakdown of marriage cannot be less than living separate for considerable period. Divorce may not be available to married.

The present is not "a given case" wherein the trial court could have waived the waiting period under Section 13B(2) of the Act of 1955.

In view of the above discussion since the appellants failed to show any reason for waiving with the period of six months before passing the decree for divorce even then it is held that the requirement of waiting period of six months as required by sub- section (2) of Section 13B of the Hindu Marriage Act, 1955 is not mandatory and is directory even then the appellants are not entitled to any relief.

(iv) Madhya Pradesh High Court
Smt. ITI vs Sharad on 8 December, 2016

The present petition is preferred against the order dated 05/12/2016 passed by the learned Family Court, Indore in HMA case No.1536/2016, whereby the learned Judge has dismissed the joint application filed by the parties for waiving off the cooling off period of six months provided under Section 13-b (2) of the Hindu Marriage Act, 1995.

The court referred to various judgments including judgments by Apex Court in cases of:

Nikhil Kumar v. Rupali Kumar
Nikhil Kumar vs. Rupali Kumar (supra)

In the aforesaid cases the Supreme Court has granted the decree of divorce in exercise of powers under Article 142 of the Constitution of India. The High Court has also granted the decree of divorce under section 13-B in number of pending regular appeals under the provisions of the Hindu Marriage Act but here the petitioner has filed the writ petition challenging inter alia the order of the Family Court, therefore, in which we cannot directly grant the decree of divorce to the petitioner but instead of granting the decree of divorce we direct the petitioner as well as respondent to appear before the Family Court on 14.10.2016 which is already fixed for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said section.

(E) (a)Earlier: on 05-02-2010: In Apex Court; Supreme Court of India:

A Bench of two-Judges of the Apex Court held that jurisdiction of this Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion under Section 13B, as doing so will be passing an order in contravention of a statutory provision.

Manish Goel vs Rohini Goel

Bench: Aftab Alam, B.S. Chauhan
(Special Leave Petition (C) No. 2954 of 2010) FEBRUARY 5, 2010

(b) Dated: 12-09-2017; While deciding the matter; The Apex Court observed that:

(i) Reliance has been placed inter alia on decision of this Court in Nikhil Kumar vs. Rupali Kumar wherein the statutory period of six months was waived by this Court under Article 142 of the Constitution and the marriage was dissolved.

Nikhil Kumar vs Rupali Kumar on 27 April, 2016

Author: Kurian Bench: Kurian Joseph, Rohinton Fali Nariman
NON-REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 4490 OF 2016 (Arising out of SLP (c) No.12161 of 2016)

(c) Without any reference to the judgment in Manish Goel (supra), power under Article 142 of the Constitution has been exercised by this Court in number of cases  even after the said judgment.

(d)Power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony.

This view was reiterated in:

Poonam vs Sumit Tanwar on 22 March, 2010
Bench: Aftab Alam, B.S. Chauhan

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 86 OF 2010

(F) Section 13B(2) of the Hindu Marriage Act says that if both parties do not change their pleas for divorce in a time period not less that six months and not later that 18 months, then the court shall pass a decree declaring the marriage to be dissolved. The period of six to 18 months provided in section 13B is an interregnum to give time and opportunity for the couple to reflect on their move.

The Apex court by its path breaking verdict on dated; 12-09-2017 laid down directions for lower courts to speed up separation if both spouses agree upon the terms and allowed Courts to exercise discretion per facts and circumstances of each case, where there is NO possibility of both spouses resuming cohabitation and there are chances of alternative rehabilitation for spouses.

The Apex Court ruled that the 6 months waiting period in cases of Mutual Consent Divorce will only prolong the agony of spouses and such waiting period can be waived off if both parties have settled all pending issues and settlements e.g; alimony, custody of children.

With the verdict of Apex Court the estranged spouses can apply to the trial court to waive off the waiting period of six months and appeal the court to decide the case.

In determining the question whether the 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.

9. After considering the above decisions, we are of the view that since Manish Goel (supra) holds the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the Constitution cannot be exercised contrary to the statutory provisions, especially when no proceedings are pending before this Court and this Court is approached only for the purpose of waiver of the statute.

10. However, we find that the question whether Section 13B(2) is to be read as mandatory or discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as it was not raised. This Court observed :

'23. The learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed under Section 13-B(1) of the Act is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.'

11. Accordingly, vide order dated 18th August, 2017, we passed the following order : 'List the matter on 23rd August, 2017 to consider the question whether provision of Section 13B of the Hindu Marriage, Act, 1955 laying down cooling off period of six months is a mandatory requirement or it is open to the Family Court to waive the same having regard to the interest of justice in an individual case. Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus to assist the Court. Registry to furnish copy of necessary papers to learned Amicus'.

13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations.

18. 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 :

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;

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; iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

20. 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.

21. 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.

22. 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.

Amardeep Singh …Appellant Versus Harveen Kaur …Respondent

REPORTABLE 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)

.....................J. (ADARSH KUMAR GOEL)
.....................J. (UDAY UMESH LALIT)

NEW DELHI;

SEPTEMBER 12, 2017.

(G) The ruling by the Apex Court is path breaking and leaves no impediment for the lower courts to waive off the waiting period of 6 months in deserving cases and as per laid rules. This shall provide relief to litigants in cases of unsuccessful marriages and save time and cost involved in litigation.

However; Even in cases of unsuccessful marriages as a precursor a bare minimum level of understanding and compromise has to be achieved to get the stamp of approval from court of law.

 

Kumar Doab 
on 19 September 2017
Published in Family Law
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