|CASE NAME||Amardeep Singh vs Harveen Kaur|
|CASE NUMBER||Civil Appeal No 11158 of 2017|
|COURT||Supreme Court of India|
|BENCH||Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit|
|AUTHOR OF THE JUDGMENT||Justice Adarsh Kumar Goel|
|DECIDED ON||September 12, 2017|
|RELEVANT ACT/SECTIONS||Constitution of India – Article 142
Hindu Marriage Act, 1955 – Section 13B(2)
|AUTHOR OF THE CASE BRIEF||Madhuli Kango|
BRIEF FACTS AND PROCEDURAL HISTORY
The Appellant and the Respondent got married on 16th January 1994 at Delhi. They subsequently had two children in 1995 and 2003 respectively. Due to some dispute of both civil and criminal nature, the parties started living separately in 2008. 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 cheques 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.
On 8th May 2017, a civil suit was filed before the Family Court (West), Tis Hazari Court, New Delhi in which 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, the parties have 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.
In Nikhil Kumar v. Rupali Kumar MANU/SC/0489/2016 : (2016) 13 SCC 383 the statutory period of six months was waived by the supreme court under Article 142 of the Constitution and the marriage was dissolved.
In Poonam v. Sumit Tanwar MANU/SC/0187/2010 : (2010) 4 SCC 460 it has been held by the Supreme Court that the power under Article 142 can be exercised when the marriage has irreversibly been broken down and anything further would only cause agony to the parties involved.
In Manish Goel v. Rohini Goel MANU/SC/0106/2010 : (2010) 4 SCC 393, a Bench of two-Judges of Supreme Court held that the statutory period of six months for the second motion Under Section 13B could not be waived under Article 142.
ISSUES BEFORE COURT OF LAW
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?
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.