In the case of a divorce petition under Section-13B of Hindu Marriage Act, 1955, commonly called mutual divorce , the provisions contained in Section 13B(2) lay down the condition that post filing of the petition, the court shall pass a decree of divorce on being satisfied of the facts contained in the petition, “ not earlier than six months and not later than eighteen months” after the date of presentation of the petition.
The important question is whether the court dealing with such divorce petition can waive-off this period of six month?
There were conflicting discussion on this issue by various high courts and the controversy was finally set to rest by Hon`ble Supreme Court in Amardeep Singh vs Harveen Kaur (2017) 8 SCC 746, wherein the Hon`ble Apex Court held that the provision of S-13-B(2) are not mandatory and the said period of six months can be waived off by the court dealing with the petition, on consideration of certain factors.
Earlier the Hon`ble Supreme Court in Manish Goel Vs Rohini Goel (2010) 4 SCC 393 had held :
14. In Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan (2009) 10 SCC 425, while dealing with the provisions of Article 142 of the Constitution, this Court has held as under:
” ….The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The
power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice
between the parties.” (Emphasis added)
15. Therefore, the law in this regard can be summarized to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor the power is exercised merely on sympathy.
Discussing the Manish Goel (supra) and various other judgments, the Hon`ble Supreme Court held in Amardeep Singh vs Harveen Kaur (2017) 8 SCC 746 as under :
18. 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 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.
More recently in Amit Kumar Vs Summan Beniwal AIR 2022 SC 570, the Hon`ble Supreme Court re-affirmed the view that the said provisions are not mandatory and, merely directory in nature. The relevant part of the judgment is quoted as under:-
20. In Amardeep Singh v. Harveen Kaur , relied upon by the Family Court and the High Court, this Court held:
“19. 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 32A 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.
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 court concerned.
20. 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.”
27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B (2) of the Hindu Marriage Act, the Court would consider the following amongst other factors: