SUPREME COURT REITERATES THAT THE WAITING PERIOD OF 6 MONTHS TO FILE SECOND MOTION APPLICATION FOR DIVORCE BY MUTUAL CONSENT CAN BE WAIVED OFF AT THE DISCRETION OF THE COURT
A two-Judge Bench of the Supreme Court comprising of Justice Indira Banerjee and Justice J. K. Maheshwari passed a judgement dated 11.12.2021, in Amit Kumar v. Suman Beniwal in Civil Appeal No. 7650 of 2021 and observed that the Apex Court has the discretionary power under Article 142 of the Constitution of India (enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.) to waive off the cooling period of 6 months stipulated under Section 13B of the Hindu Marriage Act, 1955 (Divorce by mutual consent) on a case-to-case basis to grant a decree of divorce by mutual consent.
i) In the present case, one, Amith Kumar, the Appellant-Husband, and one, Suman Beniwal, the Respondent-Wife, both filed a Decree of Divorce by Mutual Consent under Section 13(B) of the Hindu Marriage Act 1955 (Divorce by Mutual Consent) before the Ld. Family Court at Hisar, Maharashtra (Trial Court) on 30.09.2021.
ii) The Appellant and the Respondent, both highly educated and working as IPS and IFS officers, were married according to the Hindu rites on 10.09.2020 (Marriage).
iii) Thereafter, within the first three days of their Marriage, irreconcilable differences arose between the Appellant and the Respondent and as a result, both of them started living separately since 13.09.2020.
iv) Thereafter, both the Appellant and the Respondent filed an Application before the Ld. Trial Court seeking a Decree of Divorce by Mutual Consent, one year after their Marriage i.e. on 30.09.2021.
v) Thereafter, on 12.10.2021, the Appellant and the Respondent moved a Second Motion Application before the Ld. Family Court, seeking waiver of the six-month waiting period under Section 13B (2) of the Hindu Marriage Act 1955, for the Court to pass a decree of divorce.
vi) The Ld. Trial Court dismissed the Second Motion Application vide Order dated 12.10.2021, on the ground that (a) the statement of the First Motion Application was recorded on 30.09.2021, and (b) the Parties have been residing separately since 13.09.2020, which implies that on the date of recording the statement of First Motion, the period of separation of 18 months was not complete.
vii) Aggrieved by the Ld. Trial Court Order dated 12.10.2021, the Appellant filed a Civil Revisional Application bearing CRA No. CR 2537 of 2021 (O&M) under Article 227 of the Constitution of India (Power of Superintendence over All Courts by the High Court) before the High Court of Bombay.
viii) The High Court, vide Order dated 17-11-2021, dismissed the said Application on the ground that the case is misconceived and devoid of merits and relying on the Hon’ble Supreme Court’s case of Amardeep Singh v. Harveen Kaur, 2017(4) RCR (Civil) 608 further held as follows:
“5. The judgement in Amardeep Singh (supra) is unambiguous. It states that the object of Section 13B of the Act is to enable parties to dissolve a marriage by consent if it has broken down irretrievably. This would enable them to explore other options and move on in life. A period of six months has been provided in Section 13 B(2) of the Act to safeguard against a hurried decision. However, if a Court comes to the conclusion that there is no chance of a reunion, it should not be powerless to waive the statutory period of six months so that the parties may not be subjected to further agony. Thus, it has been held that the six-month statutory period prescribed is directory in nature. However, the power has been made subject to certain conditions, which are reproduced below: –
a) 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;
b) All efforts for mediation or conciliation, including efforts in terms of Order XXXIIA Rule 3 CPC, Section 23(2) of the Act, and 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;
c) the parties have genuinely settled their differences, including alimony, custody of a child, or any other pending issues between the parties;
d) The waiting period will only prolong their agony.”
Supreme Court Observations
Aggrieved by the High Court Order dated 17-11-2021, the Appellant filed a Civil Appeal No. 7650 of 2021 before the Supreme Court. The Apex Court, vide Order dated 11.12.2021, made the following observations:
1) That Section 13B(1) read with Section 13B(2) of the Hindu Marriage Act envisages a waiting period of 1 year / 12 months from the date of separation to move a first motion application seeking a decree of divorce by mutual consent (First Motion Application) and thereafter, wait for 6 months to move the second motion application for the Court to pass a decree of divorce (Second Motion Application). Thus, there is a total waiting period of 18 months to obtain a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act.
2) That in the present case, the High Court correctly found that Section 13B (2) is directory, but rejected the Civil Revisional Application filed seeking waiver of waiting period of 6 months with the observation that the Family Court had no option but to dismiss the said Application, as the condition of waiting for 1.5 years / 18 months from the date of separation, for moving the First Motion Application had not been fulfilled.
3) That the Supreme Court in Anil Kumar Jain v. Maya Jain (2009), 10 SCC 415 held that for exercise of the discretion to waive the statutory waiting period of 6 months for moving the Second Motion Application for divorce under Section 13B (2) of the Hindu Marriage Act, the Court would consider the following factors:
(a) the length of time for which the parties had been married;
(b) how long the parties had stayed together as husband and wife;
(c) the length of time the parties had been staying apart;
(d) the length of time for which the litigation had been pending;
(e) whether there were any other proceedings between the parties;
(f) whether there was any possibility of reconciliation;
(g) whether there were any children born out of wedlock;
(h) whether the parties had freely, of their own accord, and without any coercion or pressure, arrived at a genuine settlement that took care of alimony, if any, maintenance, custody of children, etc.
4) Further, the Apex Court in Amardeep Singh v. Harveen Kaur, held as follows:
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 court concerned.
“Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but a 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.”
5) Further, the Supreme Court in Soni Kumari v. Deepak Kumar, held that the Court can exercise its power under Article 142 of the Constitution of India to waive the statutory waiting period of six months, where the wife had received the entire compensation of Rs. 15 Lakhs in full and final settlement of her claims as per the settlement arrived at between the parties, and further granted a decree of divorce to the parties by mutual consent by waiving the cooling period.
Thus, based on the aforesaid observations, the Apex Court held that as both the Parties were well educated and highly placed Government officials and have mutually decided to live apart within 3 days of the Marriage owing to irreconcilable differences, hence, no useful purpose would be served by making the Parties wait any further. Therefore, the Supreme Court exercised its powers under Article 142 of the Constitution of India, and granted a Decree of Divorce by Mutual Consent under Section 13B of the Hindu Marriage Act, 1955 to the Appellant and the Respondent, thereby, waiving the statutory waiting period of 6 months under Section 13(B) (2) of the said Act.
K Suneel Kumar
The Indian Lawyer