Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7650 OF 2021
(Arising out of SLP (CIVIL) No. 20108 of 2021
Amit Kumar ……Appellant
Versus
Suman Beniwal ….Respondent
J U D G M E N T
Indira Banerjee, J.
Leave granted.
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2. This appeal is against a judgment and order dated 17 November
2021 passed by the High Court of Punjab and Haryana dismissing the
Civil Revisional Application being CRA No. 2537/2021(O&M) filed by
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the Appellant against an order dated 12 October 2021 passed by the
Family Court, Hissar, refusing the prayer of the Appellant and the
Respondent, to waive the requirement under Section 13B(2) of the
Hindu Marriage Act, 1955 to make the motion for a decree of divorce
after at least six months from the date of filing the petition for divorce
by mutual consent under Section 13B(1) of the said Act.
Signature Not Verified
3. The Appellant and the Respondent, both of whom are educated
Digitally signed by
Chetan Kumar
Date: 2021.12.18
12:06:09 IST
Reason:
and well placed in life (the Appellant being an IPS officer and the
Respondent an IFS officer), were married according to Hindu rites on
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10 September 2020. Admittedly, on account of irreconciliable
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differences, the Appellant and Respondent separated on 13
September 2020, that is, precisely three days after marriage.
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4. On or about 30 September 2021, after over one year of
separation, the Appellant and the Respondent filed a petition in the
Family Court under Section 13B of the Hindu Marriage Act for a decree
of divorce by mutual consent. Section 13B of the Hindu Marriage Act
reads as under:
“ (1) Subject to the provisions
13B Divorce by mutual consent.
of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties
to a marriage together, whether such marriage was solemnised
before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), on the ground that they*
have been living separately for a period of one year or more, that
they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six
months after the date of the presentation of the petition referred to
in subsection (1) and not later than eighteen months after the
said date, if the petition is not withdrawn in the meantime, the
court shall, on being satisfied, after hearing the parties and after
making such inquiry as it thinks fit, that a marriage has been
solemnised and that the averments in the petition are true, pass a
decree of divorce declaring the marriage to be dissolved with
effect from the date of the decree.”
5. In terms of Section 13B(1) of the Hindu Marriage Act, the parties
to a marriage might file a petition for dissolution of marriage, by decree
of divorce by mutual consent, on the ground that that they have been
living separately for a period of one year or more, and that they have
not been able to live together and have mutually agreed that the
marriage should be dissolved.
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6. Subsection (2) of Section 13B of the Hindu Marriage Act provides
that the Court shall pass a decree of divorce, declaring the marriage to
be dissolved with effect from the date of the decree, on the motion of
both the parties, made not earlier than six months after the date of
presentation of the petition referred to in subsection (1) of Section 13B,
but not later than 18 months after the said date, after making
necessary enquiries, if the petition is not withdrawn in the meantime.
7. Section 14 provides that notwithstanding anything contained
elsewhere in the Hindu Marriage Act, it shall not be competent to the
Court to entertain any petition for dissolution of a marriage by a decree
of divorce, unless on the date of presentation of the petition, one year
has elapsed since the date of marriage.
8. In terms of the proviso to Section 14, the Court may, on
application made to it, in accordance with such rules as may be made
by the High Court, allow a petition to be presented before one year has
elapsed since the date of marriage, on the ground that the case is one of
exceptional hardship to the Appellant or of exceptional depravity on the
part of the respondent. In this case, the petition under Section 13B
was filed after one year had elapsed from the date of marriage
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9. On or about 12 October 2021, the Appellant and the
Respondent moved an application before the Family Court, seeking
waiver of the sixmonth waiting period under Section 13B(2) of the
Hindu Marriage Act, to make the motion for the Court to pass a decree
of divorce.
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10. By the order dated 12 October 2021, impugned before the High
Court, the Family Court dismissed the application as devoid of merits
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and not maintainable. The case file was directed to be put up on 4
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April 2022 for the purpose of recording statement on 2 motion of the
parties. The Family Court held:
“As per the guidelines laid down by the Hon’ble Supreme Court in
case titled Amardeep Singh v. Harveen Kaur, 2017(4) RCR (Civil)
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fixed to waive off the stipulated period of six months as
mentioned under Section 13B(2) of the Hindu Marriage Act. In the
above mentioned case it has been clearly laid down that where
the Court dealing with the matter is satisfied that a case is made
out to waive the statutory period under Section 13B(2) of the
Hindu Marriage Act, it can do so after considering the following:
1) The statutory period of six months specified in Section 13B(20 in
addition to the statutory period of one year under Section 13B of
separation of parties is already over before the first motion itself.
2) …..
3) …..
4) ….
6. In the present case, the statement of first motion was recorded
on 30.09.2021 and the parties are residing separately since
13.09.2020. Meaning thereby on the date of recording the
statement of first motion, the period of separation of 18 months
was not complete. The present case is not covered by the
guidelines laid down by the Hon’ble Supreme Court in para no.19
of the judgment. In such circumstances, this Court cannot grant
permission for waiving off the stipulated period of six months
under Section 13B(2) of the Hindu Marriage Act. The application
is accordingly dismissed being devoid of merits and not
maintainable. Now the file be put upon 04.04.2022 for the
purpose already fixed i.e., for recording statement of second
motion of the parties.”
11. The Appellant filed a Civil Revisional Application under Article
227 of the Constitution of India, being CR 2527 2021 (O&M) in the
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High Court, challenging the aforesaid order dated 12 October 2021
passed by the Family Court.
12. The said Civil Revisional Application has been dismissed by the
High Court, by the judgment and order impugned in this appeal. The
High Court, held:
inter alia,
“5.The judgment in Amardeep Singh (supra) is unambiguous. It
lays down 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
to move on in life. A period of six months has been provided in
Section 13B(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 six months statutory
period prescribed is directory in nature. However, the power has
been made subject to certain conditions which are reproduced
below:
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) ii) 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;
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.
5. A perusal of the aforementioned conditions shows that all of
them are fulfilled except the condition of a period of 1 ½ years
having elapsed before the first motion. Thus, the Family Court
had no option but to dismiss the application filed for waiving the
period of six months. In this view of the matter no error has been
committed by it warranting any interference by this Court. The
judgments in
Jobanpreet Kaur (supra); Nav Raj Bhatta (supra) and Priyanka
Chauhan (supra) cannot be relied upon even though in the said
cases a period of 1 ½ years had not elapsed before the first
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motion for the reason that none of them have considered the issue
of waiver being subject to period of 1 ½ years having elapsed
before first motion.
6. In view of the above, the revision petition has no merit and is
dismissed.”
13. Section 13B(1) of the Hindu Marriage Act read with Section
13B(2) envisages a total waiting period of 1 ½ years from the date of
separation to move the motion for a decree of divorce. The High Court
correctly found that Section 13B (2) is directory, but rejected the
Criminal Revisional Application with the observation that the Family
Court had no option but to dismiss the application for waiving the
waiting period of six months, since the condition of waiting for 1½ years
from the date of separation for moving the motion for passing of a
decree of divorce had not been fulfilled.
14. The provisions of the Hindu Marriage Act evince an inherent
respect for the institution of marriage, which contemplates the
sacramental union of a man and a woman for life. However, there may
be circumstances in which it may not reasonably be possible for the
parties to the marriage to live together as husband and wife.
15. The Hindu Marriage Act, therefore has provisions for annulment
of marriage in specified circumstances, which apply to marriages which
are not valid in the eye of law and provisions of judicial separation and
dissolution of marriage by decree of divorce on grounds provided in
Section 13(1) of the said Act, which apply to cases where it is not
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reasonably possible for the parties to a marriage to live together as
husband and wife.
16. Section 13B incorporated in the Hindu Marriage Act with effect
from 27.5.1976, which provides for divorce by mutual consent, is not
intended to weaken the institution of marriage. Section 13B puts an
end to collusive divorce proceedings between spouses, often
undefended, but time consuming by reason of a rigmarole of
procedures. Section 13B also enables the parties to a marriage to
avoid and/or shorten unnecessary acrimonious litigation, where the
marriage may have irretrievably broken down and both the spouses
may have mutually decided to part. But for Section 13B, the defendant
spouse would often be constrained to defend the litigation, not to save
the marriage, but only to refute prejudicial allegations, which if
accepted by Court, might adversely affect the defendant spouse.
17. Legislature has, in its wisdom, enacted Section 13B (2) of the
Hindu Marriage Act to provide for a cooling period of six months from
the date of filing of the divorce petition under Section 13B (1), in case
the parties should change their mind and resolve their differences. After
six months if the parties still wish to go ahead with the divorce, and
make a motion, the Court has to grant a decree of divorce declaring the
marriage dissolved with effect from the date of the decree, after making
such enquiries as it considers fit.
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18. The object of Section 13B(2) read with Section 14 is to save the
institution of marriage, by preventing hasty dissolution of marriage. It
is often said that “time is the best healer”. With passage of time,
tempers cool down and anger dissipates. The waiting period gives the
spouses time to forgive and forget. If the spouses have children, they
may, after some time, think of the consequences of divorce on their
children, and reconsider their decision to separate. Even otherwise, the
cooling period gives the couple time to ponder and reflect and take a
considered decision as to whether they should really put an end to the
marriage for all time to come.
19. Where there is a chance of reconciliation, however slight, the
cooling period of six months from the date of filing of the divorce
petition should be enforced. However, if there is no possibility of
reconciliation, it would be meaningless to prolong the agony of the
parties to the marriage. Thus, if the marriage has broken down
irretrievably, the spouses have been living apart for a long time, but not
been able to reconcile their differences and have mutually decided to
part, it is better to end the marriage, to enable both the spouses to
move on with the life.
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20. In Amardeep Singh v. Harveen Kaur , relied upon by the
Family Court and the High Court, this Court held:
1 (2017) 8 SCC 746
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“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 13
B(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.”
21. The factors mentioned in
Amardeep Singh v. Harveen Kaur
(supra), in Paragraph 19 are illustrative and not exhaustive. These are
factors which the Court is obliged to take note of. If all the four
conditions mentioned above are fulfilled, the Court would necessarily
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have to exercise its discretion to waive the statutory waiting period
under Section 13B (2) of the Marriage Act.
22. The Family Court, as well as the High Court, have misconstrued
the judgment of this Court in Amardeep Singh v. Harveen Kaur
(supra) and proceeded on the basis that this Court has held that the
conditions specified in paragraph 19 of the said judgment, quoted
hereinabove, are mandatory and that the statutory waiting period of six
months under Section 13B (2) can only be waived if all the aforesaid
conditions are fulfilled, including, in particular, the condition of
separation of at least one and half year before making the motion for
decree of divorce.
23. It is well settled that a judgment is a precedent for the issue of
law that is raised and decided. A judgment is not to be read in the
manner of a statute and construed with pedantic rigidity. In
Amardeep Singh v. Harveen Kaur (supra), this Court held that the
statutory waiting period of at least six months mentioned in Section
13B (2) of the Hindu Marriage Act was not mandatory but directory and
that it would be open to the Court to exercise its discretion to waive the
requirement of Section 13B(2), having regard to the facts and
circumstances of the case, if there was no possibility of reconciliation
between the spouses, and the waiting period would serve no purpose
except to prolong their agony.
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24. In Devinder Singh Narula v. Meenakshi Nangia , this Court
observed:
“8. We have carefully considered the submissions made on behalf
of the parties and have also considered our decision in Anil Kumar
Jain case [Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 :
(2009) 4 SCC (Civ) 226] . It is no doubt true that the legislature
had in its wisdom stipulated a cooling off period of six months
from the date of filing of a petition for mutual divorce till such
divorce is actually granted, with the intention that it would save
the institution of marriage. It is also true that the intention of the
legislature cannot be faulted with, but there may be occasions
when in order to do complete justice to the parties it becomes
necessary for this Court to invoke its powers under Article 142 in
an irreconcilable situation. In fact, in Kiran v. Sharad
Dutt [Kiran v. Sharad Dutt, (2000) 10 SCC 243] , which was
considered in Anil Kumar Jain case [Anil Kumar Jain v. Maya
Jain, (2009) 10 SCC 415 : (2009) 4 SCC (Civ) 226] , after living
separately for many years and 11 years after initiating the
proceedings under Section 13 of the Hindu Marriage Act, the
parties filed a joint application before this Court for leave to
amend the divorce petition and to convert the same into a
proceeding under Section 13B of the Act. Treating the petition as
one under Section 13B of the aforesaid Act, this Court by invoking
its powers under Article 142 of the Constitution granted a decree
of mutual divorce at the stage of the SLP itself. In different cases,
in different situations, this Court had invoked its powers under
Article 142 of the Constitution in order to do complete justice
between the parties.”
2 (2012) 8 SCC 580
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25. In Soni Kumari v. Deepak Kumar , this Court exercised 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 lacs 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.
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26. In Anil Kumar Jain v. Maya Jain , this Court held:
“29. In the ultimate analysis the aforesaid discussion throws up
two propositions. The first proposition is that although irretrievable
breakdown of marriage is not one of the grounds indicated
whether under Section 13 or 13B of the Hindu Marriage Act, 1955
for grant of divorce, the said doctrine can be applied to a
proceeding under either of the said two provisions only where the
proceedings are before the Supreme Court. In exercise of its
extraordinary powers under Article 142 of the Constitution the
Supreme Court can grant relief to the parties without even waiting
for the statutory period of six months stipulated in Section 13B of
the aforesaid Act.”
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:
(i) the length of time for which the parties had been married;
(ii) how long the parties had stayed together as husband and wife;
(iii) the length of time the parties had been staying apart;
(iv) the length of time for which the litigation had been pending;
3 (2016) 16 SCC 346
4 (2009) 10 SCC 415
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(v) whether there were any other proceedings between the parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock;
(viii) whether the parties had freely, of their own accord, without
any coercion or pressure, arrived at a genuine settlement
which took care of alimony, if any, maintenance and custody
of children, etc.
28. In this Case, as observed above, the parties are both well
educated and highly placed government officers. They have been
married for about 15 months. The marriage was a nonstarter.
Admittedly, the parties lived together only for three days, after which
they have separated on account of irreconcilable differences. The
parties have lived apart for the entire period of their marriage except
three days. It is jointly stated by the parties that efforts at
reconciliation have failed. The parties are unwilling to live together as
husband and wife. Even after over 14 months of separation, the parties
still want to go ahead with the divorce. No useful purpose would be
served by making the parties wait, except to prolong their agony.
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29. The appeal is, therefore, allowed. The impugned order dated 17
November, 2021 passed by the High Court and the impugned order
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dated 12 October, 2021 passed by the Family Court, Hissar are set
aside.
30. In the facts and circumstances of this case, this Court deems it
appropriate to exercise its power under Article 142 of the Constitution
of India, to grant the Appellant and the Respondent a decree of divorce
by mutual consent under Section 13B of the Hindu Marriage Act, 1955,
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waiving the statutory waiting period of six months under Section 13(B)
(2) of the said Act.
31. There will accordingly be a decree of divorce by mutual consent
under Section 13B of the Hindu Marriage Act, 1955 dissolving the
marriage of the Appellant and the Respondent.
32. Pending Applications, if any, stand disposed of.
.………………………………….J.
[INDIRA BANERJEE]
…………………………………..J.
[J. K. MAHESHWARI]
NEW DELHI;
DECEMBER 11, 2021