Supreme Court Judgment- Amardeep Singh v. Harveen Kaur, 2017 (6 months For a Mutual Divorce waived off)
Question: Whether the minimum waiting period of Six months for a mutual divorce under Sec 13-B (2) of the Hindu Marriage Act, 1955 can be waived off.
Answer: Yes it can be waived off. An Application for setting aside the minimum mandatory period of six months can be moved by the parties after a period of one week from the day the first motion is passed.
Forum: Supreme Court
Bench: (J) A.K. Goel and (J) U.U. Lalit
Sec 13-B of the Hindu Marriage Act, 1955
Under Hindu Law, marriage is considered as a sacrament and not a contract. Thus the concept of dissolving the marriage by mutual consent was unknown to the Hindu Law. However, in the year 1976, an amendment was made to the Hindu Marriage Act, 1955 (hereinafter referred to as HMA) and the concept of mutual divorce was introduced by the Parliament.
The main objective behind this provision was to not put the parties to misery where the marriage had undergone an irretrievable breakdown and there was no scope of living together as husband and wife.
Clause 1 of Sec 13-B contemplates that a marriage can be dissolved by mutual consent by presenting a petition to the concerned district court if:
- The parties have been living separately for more than one year, and
- They have not been able to live together, and
- They have mutually decided that they want to dissolve the marriage.
Clause 2 of Sec 13-B contemplates that after the 1st motion where the petition was presented to the court, and after a period of six months has passed, then the court on hearing the parties and on being satisfied that the parties have not been able to reconcile their differences and have been living separately for more than a year, can pass a decree for dissolving the marriage.
Facts of the Case-
In this case, the parties had got married on 16.01.1994 and they had two children who were born in the year 1995 and 2003 respectively. Their marriage went through a turbulent time due to some marital discord and they were not able to reconcile their differences. As such, they had been living separately since the year 2008.
Subsequently, certain disputes arose between them which resulted into civil and criminal proceedings. However, they managed to finally settle their differences on 28.04.2017 and agreed to dissolve their marriage mutually. It was agreed that Rs. 2.75 Crores will be paid by the husband to the wife as permanent alimony and the custody of the child would remain with the husband.
They filed a petition for dissolving their marriage before the Family Court, Tis Hazari Courts, New Delhi vide HMA No. 1059 of 2017. Their statements were recorded on 08.05.2017 and the husband paid two cheques of Rs.50,00,000/-, towards the permanent alimony which had been duly honored.
Issues of the Case-
The Husband Amardeep Singh was the appellant in this case and his wife Harmeet Kaur was the respondent. The primary issue for consideration in this case was that whether the period of six months prescribed under Sec 13-B (2) of the HMA was a minimum mandatory period or it could be waived off under certain circumstances by the court.
Arguments of the Appellant
The Appellant, in this case, had petitioned the court for waiving off the period of six months contemplated in Sec 13-B (2) of the HMA as the same was having an adverse effect on their resettlement plans.
The Appellant argued that:
- The waiting period is directory and can be waived off by the court in exceptional circumstances,
- Previous decisions of the Supreme Court such as in cases of Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383, the Supreme Court has waived off the period by using its jurisdiction,
- Sec 13 B (1) discusses the jurisdiction of the court and a petition becomes maintainable only when the parties are living separately for more than a year, thus Sec 13 B (2) is merely procedural in nature.
The Hon’ble Supreme Court in order to settle the issue considered the objective and the purpose of the amendment made in the year 1976 through which sec 13-B was added to the HMA.
It was observed that the provision provided for mutual divorce to parties which had been living separately for more than a year and there was no scope for the parties to put their differences to rest. As such the minimum mandatory time period of six months which was prescribed by the provision was creating a problem for the parties to move on and start their independent lives.
It was held that the court had the power to waive off the period of six months provided under Sec 13-B (2) of the HMA in cases where the court was satisfied that:
- The period of six months provided under 13-B (2) of the HMA along with the period of one year for moving the petition for divorce under 13-B (1) of the HMA was already over before filing the petition, and
- Options of mediation and conciliation had been used and had failed to settle the differences in terms of the provisions of the Civil Procedure Code, 1908 and the Family Courts Act, 1984, and
- The disputes regarding the alimony and the custody of the children had been settled by the parties, and
- The waiting period would cause hindrance in the resettlement of the parties.
It was also directed that the application of waiving off the time period of six months could be made by the parties after a week from the day the petition for seeking the mutual divorce is presented to the court and the same is allowed by the court after considering all the factors and satisfying itself.