Title of the case: Amardeep Singh v, Harveen Kaur on 12 September, 2017
Citation: Civil Appeal NO. 11158 OF 2017 (Arising out of Special Leave Petition (Civil)No. 20184 of 2017)
Court: SUPREME COURT OF INDIA
Bench: Justice Adarsh Kumar Goel
Appellant: Amardeep Singh
Respondent: Harveen Kaur
The Appellant and the Respondent got married on 16th January 1994 at Delhi. They subsequently had two children in 1995 and 2003 respectively. The parties started living separately since 2008 which also lead to civil and criminal proceedings between the two. The dispute was finally settled with a decision to seek divorce by mutual consent on 28th April 2017. The respondent was granted permanent alimony of Rs.2.75 crores and was thus given two cheque of Rs.50,00,000/- by the appellant which has been well honored, it was also held that the appellant will hold custody of the child.
The parties have sought waiver of the period of six months for the second motion as they have already been living separately for more than last eight years and there is no possibility of their reunion and the delay will only affect their chances of any resettlement. Therefore, they moved to the Supreme Court on the ground that only the Supreme Court can relax the six months period as per previous decisions of the Supreme Court
Whether the exercise of power under Article 142 of the Constitution to waive the period under Section 13B(2) of the Hindu Marriage Act was mandatory or directory?
Argument of appellant:
This Court noted that 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 litigation and to save the parties from further agony. 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.
In Anjana Kishore (supra), this Court was dealing with a transfer petition and the parties reached a settlement. This Court waived the six months period under Article 142 in the facts and circumstances of the case.
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 and 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).
Argument of respondent:
Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. In Manish Goel versus Rohini Goel, a Bench of two-Judges of this 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.
In Rajaram v. Union of India [(2001) 2 SCC 186] held that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only 2 (2010) 4 SCC 393 through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.
Also we have seen in Anil Kumar Jain versus Maya Jain, one of the parties withdrew the consent. This Court held that marriage had irretrievably broken down and though the civil courts and the High Court could not exercise power contrary to the statutory provisions, this Court under Article 142 could exercise such power in the interests of justice. Accordingly, the decree for divorce was granted
The court held that the object of 13B(2)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 and the cooling off period is necessary to ensure that rash decisions are not taken.
It was also held that the Court should give due regards to the language, context, the subject matter and the object of the provision to determine whether a provision is mandatory or directory.
In this regard it was held by the court that Court where it 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 a 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 at the discretion of the Court. 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.
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.