The Supreme Court today held that minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (Act) for a motion for passing decree of divorce on the basis of mutual consent is not mandatory and can be waived by courts depending on the facts and circumstances of the case.
The judgment was delivered by a Bench of Justices AK Goel and UU Lalit in an appeal against a judgment of the Delhi High Court.
The question which arose for consideration before the Court was whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in exceptional situations.
In the instant case, the parties had sought waiver of the period of six months for the second motion on the ground that they were living separately for more than eight years and there is no possibility of their re-union. The parties moved the Supreme Court on the ground that only the Supreme Court can relax the six months period as per its earlier decisions.
The Court considered the submissions of the parties and the Amicus Curiae brief background of the relevant provision – Section 13B(2).
“Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve the marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after the filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.”
It said that the object of the provision 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 the available options.
It held that the cooling-off period prescribed by the provision was to safeguard against a hurried decision and was not to perpetuate a purposeless marriage.
“The amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise the possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.”
The Court then proceeded to consider whether the cooling-off period is mandatory or directory. It opined that in deciding the same, the language alone is not always decisive and that the Court should have the regard to the context, the subject matter and the object of the provision.
It, therefore, proceeded to hold that the period mentioned in Section 13B(2) is not mandatory but directory and held the following:
“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 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 the child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.
The Court concluded that since the period mentioned in Section 13B(2) is not mandatory but the 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.
Reference-
Bar and Bench
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