Supreme Court Relaxes Six-Month Waiting Period for Divorce by Mutual Consent: Amardeep Singh vs. Harveen Kaur (2017) INSC 777 (12 September 2017)

Introduction

Citation: (2017) INSC 777

Judges: Adarsh Kumar Goel, J. and Uday Umesh Lalit, J.

Can a couple seeking divorce by mutual consent have the mandatory six-month waiting period waived? The Supreme Court of India addressed this crucial question, clarifying the interpretation of Section 13B(2) of the Hindu Marriage Act, 1955. The Court considered whether this waiting period is absolute or if it can be relaxed in certain situations.

The Supreme Court, in this judgment, held that the six-month waiting period is not mandatory but directory. This means that family courts can use their discretion to waive this period if certain conditions are met. The judgment was authored by Justice Adarsh Kumar Goel, with Justice Uday Umesh Lalit concurring.

Case Background

The marriage between Amardeep Singh and Harveen Kaur took place on January 16, 1994, in Delhi. They had two children, born in 1995 and 2003. The couple had been living separately since 2008.

Disputes arose between them, leading to both civil and criminal proceedings. Eventually, on April 28, 2017, they reached a settlement to resolve all disputes. They decided to seek a divorce by mutual consent.

As part of the settlement, the wife was to receive a permanent alimony of Rs. 2.75 crores. The husband also paid Rs. 50,00,000 through two cheques. The custody of the children was agreed to be with the husband.

They filed HMA No. 1059 of 2017 before the Family Court, Tis Hazari Court, New Delhi. The parties’ statements were recorded on May 8, 2017. They requested a waiver of the six-month waiting period for the second motion. They argued that they had been living apart for over eight years and there was no chance of reconciliation. They also stated that any delay would affect their chances of resettlement.

Timeline

Course of Proceedings

The parties initially filed a petition for divorce by mutual consent before the Family Court in Delhi. They sought a waiver of the six-month waiting period. The Family Court was unable to grant the waiver, citing the mandatory nature of the provision.

The parties then approached the Supreme Court, arguing that only the Supreme Court could relax the six-month period, based on previous decisions. The Supreme Court, recognizing conflicting views on the issue, decided to examine whether the waiting period was mandatory or directory.

Legal Framework

The core legal provision in question is Section 13B of the Hindu Marriage Act, 1955. This section allows for divorce by mutual consent.

Section 13B(1) states that a divorce petition can be presented to the court if the parties have been living separately for a year or more. They must also be unable to live together and mutually agree to dissolve the marriage.

Section 13B(2) of the Hindu Marriage Act, 1955, states:

“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 sub-section (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 solemnized 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.”

This section mandates a waiting period of six months between the first and second motions for divorce. This period is intended to allow the parties time to reconsider their decision.

Arguments

The appellant argued that the six-month waiting period should be waived. They stated that they had been living separately for a long time. They also argued that there was no possibility of reconciliation. They cited previous Supreme Court cases where the waiting period was waived under Article 142 of the Constitution.

The amicus curiae (friend of the court) submitted that the waiting period under Section 13B(2) of the Hindu Marriage Act, 1955, is directory, not mandatory. The amicus curiae argued that the court can waive this period in exceptional cases.

The amicus curiae supported this view by citing judgments from various High Courts. These judgments suggest that the waiting period can be waived when there is no chance of reconciliation. The amicus curiae also stated that the court should consider factors such as the length of the marriage, the duration of separation, and any other pending proceedings.

The amicus curiae argued that Section 13B(1) of the Hindu Marriage Act, 1955, relates to the jurisdiction of the court. The court can only entertain a petition if the parties have been living separately for a year or more. Section 13B(2) of the Hindu Marriage Act, 1955, on the other hand, is procedural.

The amicus curiae suggested that the court should consider the following factors:

• ✓ How long have the parties been married?
• ✓ How long has the litigation been pending?
• ✓ How long have they been living apart?
• ✓ Are there any other proceedings between the parties?
• ✓ Have the parties attended mediation or conciliation?
• ✓ Have the parties reached a genuine settlement on alimony, child custody, and other issues?

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether the provision of Section 13B of the Hindu Marriage Act, 1955, laying down a cooling-off period of six months is a mandatory requirement, or is it open to the Family Court to waive the same, having regard to the interest of justice in an individual case?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Court considered the following authorities:

Judgment

The Supreme Court held that the six-month waiting period under Section 13B(2) of the Hindu Marriage Act, 1955, is not mandatory but directory. This means that the Family Court has the discretion to waive this period in certain situations.

The Court considered the authorities and made the following observations:

What Weighed in the Mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to provide a practical and compassionate approach to divorce proceedings. The court recognized that forcing couples to remain in a dead marriage does not serve any purpose.

The Court emphasized the importance of considering the context, subject matter, and object of the statutory provision. It noted that the purpose of the waiting period was to allow for reconciliation, not to prolong the agony of the parties when reconciliation was impossible.

The Court also considered the fact that the parties had already been living separately for a long time. It noted that there was no chance of reconciliation and that a further waiting period would only prolong their suffering.

The Court also emphasized the importance of enabling parties to rehabilitate themselves. It was of the view that the law should not be an impediment to a better future.

The Court’s reasoning can be illustrated as follows:

The Court considered alternative interpretations of Section 13B(2) of the Hindu Marriage Act, 1955. It rejected the view that the provision is mandatory. The Court reasoned that such an interpretation would defeat the purpose of the law. The purpose is to allow couples to move on with their lives when a marriage has irretrievably broken down.

The Court emphasized that its decision was based on a careful analysis of the legal framework, precedents, and the specific facts of the case.

The Court’s decision was unanimous. Both judges agreed that the waiting period was directory and could be waived in appropriate cases.

The Court stated:

“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 Court also observed:

“The object of the cooling off 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.”

The Court further stated:

“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.”

Key Takeaways

• ✓ The six-month waiting period under Section 13B(2) of the Hindu Marriage Act, 1955, is not mandatory but directory.
• ✓ Family Courts can waive this period if certain conditions are met.
• ✓ The conditions include: separation for more than the statutory period, failed mediation attempts, genuine settlement on all issues, and prolonged agony due to waiting.
• ✓ Courts can use video conferencing and allow representation through close relations in these proceedings.

Directions

The Supreme Court directed the parties to approach the concerned court for fresh consideration in light of this order.

Development of Law

The ratio decidendi of this case is that the six-month waiting period under Section 13B(2) of the Hindu Marriage Act, 1955, is directory and not mandatory. This decision clarifies the law and provides a more flexible approach to divorce by mutual consent. This is a change from previous interpretations that treated the waiting period as mandatory.

Conclusion

The Supreme Court’s judgment in Amardeep Singh vs. Harveen Kaur provides significant relief to couples seeking divorce by mutual consent. By declaring the six-month waiting period as directory, the Court has empowered Family Courts to expedite divorce proceedings in appropriate cases. This decision ensures that the law serves the interests of justice and does not prolong the agony of couples when there is no chance of reconciliation.