My Lord, Is the statutory period of six months prescribed under Section 13B(2) of The Hindu Marriage Act, 1955 (for a motion for passing decree of divorce on the basis of mutual consent) mandatory or directory and if directory, can the same be dispensed with, exercising the power under Article 142 of the Constitution?
In 2 Judge Manish Goel, (2010) 4 SCC 393 THE QUESTION was not gone into as it was not raised:
“The statutory period of six months for filing the second petition under Section 13B(2) of the Act has been prescribed for providing an opportunity to parties to reconcile and withdraw the petition for dissolution of marriage. Learned Counsel… is not able to advance arguments on the issue as to whether, statutory period prescribed under Section 13B(1) of the Act is mandatory or directory…”
The judgment however described the position that “in exercise of the power under Article 142 of the Constitution, the Supreme Court generally does not pass an order in contravention of or ignoring the statutory provisions nor the power is exercised merely on sympathy.” It could be gathered from the use of the word ‘generally’ and the last paragraph of the judgment that the Court did not find the divorce case before it to be a fit case for exercise of its extraordinary jurisdiction under Article 142 of the Constitution. But it did not altogether rule out that exercise for waiving the Section 13B(2) statutory period.
Three months later, the 2 Judge Neeti Malviya, (2010) 6 SCC 413 decided THE QUESTION needs a Referral to a Larger Bench. The Larger Bench was never constituted because the Malviyan Divorce came through and the matter was rendered infructuous. The consideration of Referral should have bound all Future Co-ordinate Benches unless it distinguished that need.
In Amardeep Singh v. Harveen Kaur, [Civil Appeal No. 11158 of 2017] 2 Judges have now held, “since Manish Goel 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 the Supreme Court and the Court is approached only for the purpose of waiver of the statute…
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.
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 :
- 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 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;
- 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 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.“
Some of the above observations are first of its kind. Should 2 Judge Amardeep have characterized the word ‘generally’ in 2 Judge Manish Goel in such elaborate fashion? Should it have distinguished the need for a Referral? Questions for a Larger Bench, surely.
 Interestingly, in 3 Judge Anjana Kishore, (2002) 10 SCC 194, many years earlier, power under Article 142 was exercised to allow parties to move a joint application before a Family Court for ‘dispensing with the need of waiting for six months’. It was directed the Family Court would pass a final order on such petition ‘within such time as it may deem fit’.
Without any reference to the judgment in Manish Goel the power under Article 142 of the Constitution has been exercised by the Supreme Court in a number of similar cases after to waive the Section 13B(2) statutory period: Priyanka Singh, (2010) 15 SCC 390; Sarita Singh, (2010) 15 SCC 374; Harpreet Singh Popli, (2010) 15 SCC 316; Hitesh Bhatnagar, (2011) 5 SCC 234; Veena, (2011) 14 SCC 614; Priyanka Khanna, (2011) 15 SCC 612; Devinder Singh Narula, (2012) 8 SCC 580; Vimi Vinod Chopra, (2013) 15 SCC 547; Priyanka Chawla, (2016) 3 SCC 126; Nikhil Kumar, (2016) 13 SCC 383.