Factual matrix giving rise to instant appeal is that marriage between the parties took place on 16th January, 1994. Two children were born in 1995 and 2003, respectively. Since, 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28th April, 2017, a settlement was arrived at to resolve all the disputes and seeks divorce by mutual consent. The Respondent-wife is to be given permanent alimony of Rs. 2.75 crores. Accordingly, HMA was fled before the Family Court and statements of the parties were recorded. The Appellant-husband has also handed over two cheques of Rs. 50,00,000/-, which have been duly honoured, towards part payment of permanent alimony. Custody of the children is to be with the Appellant. They have sought waiver of the period of six months for the second motion on the ground that, they have been living separately for the last more than eight years and there is no possibility of their re-union. Any delay will affect the chances of their re-settlement. The parties have moved this Court on the ground that, only this Court can relax the six months period as per decisions of this Court. The question which arises for consideration in this appeal is whether the minimum period of six months stipulated under Section 13B(2) of Hindu Marriage Act, 1955 for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.
There is conflict of decisions of this Court on the question whether exercise of power under Article 142 of Constitution to waive the statutory period under Section 13B of the Act was appropriate. In Manish Goel v. Rohini Goel, a Bench of two-Judges of this Court held that jurisdiction of this Court under Article 142 of Constitution, could not be used to waive the statutory period of six months for fling the second motion under Section 13B of Act, as doing so will be passing an order in contravention of a statutory provision. This Court noted that, power under Article 142 of Constitution, had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony. Further, in Anjana Kishore v. Puneet Kishore, this Court was dealing with a transfer petition and the parties reached a settlement. This Court waived the six months period under Article 142 of Constitution in the facts and circumstances of the case.
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 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) of Act, contains a bar to divorce being granted before six months of time elapsing after fling 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 re-conciliation.
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 available options. The amendment was inspired by the thought that, forcible perpetuation of status of matrimony between un-willing partners did not serve any purpose. The object of the cooling of the period was to safeguard against a hurried decision, if there was otherwise 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.
In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. The principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation”, has been cited with approval in Kailash v. Nanhku and Ors. is to be applied in present case. On applying the same, Supreme Court is 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) of Act, it can do so after considering the following: i) the statutory period of six months specified in Section 13B(2) of Act, in addition to the statutory period of one year under Section 13B(1) of Act, 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 of Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to re-unite 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 fled 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 concerned Court. Since, Supreme Court viewed that, period mentioned in Section 13B(2) of Act, 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. In conducting such proceedings, the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice. The parties are now at liberty to move the concerned Court for fresh consideration in the light of this order. The appeal is disposed of accordingly
As carried in MP