Waiting Period For Mutual Consent Divorce As Per S.13B(2) Of Hindu Marriage Act Can Be Waived Invoking Article 142 : Supreme Court

A Constitution Bench of the Supreme Court has held that it can invoke the special powers under Article 142 of the Constitution of India to waive the waiting period of 6 to 8 months prescribed for seeking divorce through mutual consent as per Section 13-B of the Hindu Marriage Act 1955.

The 5-judge bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari held that Supreme Court can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act.

As per Section 13-B of the Hindu Marriage Act, after filing the first motion seeking divorce through mutual consent, the parties have to wait for a minimum of six months and a maximum of 18 months before moving the second motion. This 'cooling off period' is mandated by the legislature so as enable the parties to have an opportunity for introspection and re-think over the decision.

However, this mandate for waiting period was found to be causing hardships in certain cases. In 2017, a two-judge bench of the Court in Amardeep Singh v. Harveen Kaur held that the six months waiting period as prescribed under Section 13B(2) of the HMA is not mandatory and that the same can be waived by the Family Court in exceptional circumstances.

The Supreme Court also, in certain cases which came before it, invoked the powers under Article 142 to dispense with the waiting period. This was done in certain matrimonial appeals and transfer petitions which came before the Supreme Court, in which the parties entered into a mutual settlement during the pendency of the proceedings. In 2015, a three-judge bench referred to the Constitution Bench the issue whether the powers under Article 142 could be invoked to dispense with a statutory requirement.

Answering this reference, the Constitution Bench has held that the power under Article 142 to do "complete justice" can be invoked to waive the procedural requirement under Section 13B(2). However, this power is discretionary and is to be exercised with care and caution.

The Constitution Bench noted that in Amardeep Singh, certain factors were mentioned which will warrant the waiving of the waiting period :

1. 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;
2. 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 effort;
3. The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
4. The waiting period will only prolong their agony

The two-judge bench in Amardeep Singh further held that the Court should consider the following questions :

(i) How long parties have been married?

(ii) How long litigation is pending?

(iii) How long they have been staying apart?

(iv) Are there any other proceedings between the parties?

(v) Have the parties attended mediation/ conciliation?

(vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

The bench also noted that in Amit Kumar v. Suman Beniwal (2021), a two-judge bench held that in addition to the factors mentioned in Amardeep Singh, the Court should also ascertain whether the parties have freely, on their own accord, and without any coercion or pressure arrived at a genuine settlement which took care of the alimony, if any, maintenance and custody of children, etc.

Endorsing the factors specified in Amardeep Singh and Amit Kumar, the Constitution Bench observed :

"In our opinion, Section 13-B of the Hindu Marriage Act does not impose any fetters on the powers of this Court to grant a decree of divorce by mutual consent on a joint application, when the substantive conditions of the Section are fulfilled and the Court, after referring to the factors mentioned above, is convinced and of the opinion that the decree of divorce should be granted"

The bench further stated that Public policy underlying the legislations dealing with family and matrimonial matters is to encourage mutual settlement. 

"The courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end", the judgment authored by Justice Sanjiv Khanna stated.

The bench recorded its conclusion as follows :

"This Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings"

Answering another issue in the case, the Court held it can invoke powers under Article 142 of the Constitution to dissolve marriage on the ground of irretrievable breakdown of marriage. The bench also made it clear that a party cannot file a writ petition under Article 32 of the Constitution of India to seek relief of dissolution of marriage on the ground of irretrievable breakdown of marriage directly from it.

Case Title : Shilpa Sailesh vs Varun Sreenivasan

Citation : 2023 LiveLaw (SC) 375

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