2017 (9) TMI 2031 - SC - Indian Laws

Interpretation of statute - minimum period of six months stipulated Under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent - the time is mandatory or can be relaxed in any exceptional situations? - HELD 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 available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling 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. This principle, as formulated in Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn., 2004), has been cited with approval in KAILASH VERSUS NANHKU ORS. 2005 (4) TMI 542 - SUPREME COURT holding that ' The study of numerous cases on this topic does not lead to formulation of any universal Rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory.' 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 Code of Civil Procedure/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 - 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 it is held 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. Appeal disposed off.

Summary

Issues Involved:
1. Whether the six-month period stipulated under Section 13B(2) of the Hindu Marriage Act, 1955, for a motion for passing a decree of divorce by mutual consent is mandatory or can be relaxed in exceptional situations.

Issue-Wise Detailed Analysis:

1. Nature of the Six-Month Period under Section 13B(2) of the Hindu Marriage Act, 1955:
The primary issue in this appeal is whether the six-month period stipulated under Section 13B(2) of the Hindu Marriage Act, 1955, is mandatory or can be relaxed in exceptional situations. The factual matrix reveals that the parties have been living separately since 2008 and have resolved all disputes, including a settlement for permanent alimony. They sought waiver of the six-month period for the second motion on the grounds of prolonged separation and no possibility of reunion, arguing that delay would affect their chances of resettlement.

2. Conflicting Judgments on the Exercise of Power under Article 142:
There is a conflict in the decisions of the Supreme Court regarding the exercise of power under Article 142 to waive the statutory period under Section 13B. In Manish Goel v. Rohini Goel, it was held that the jurisdiction under Article 142 could not be used to waive the statutory period, as it would contravene a statutory provision. However, in other cases, such as Nikhil Kumar v. Rupali Kumar, the Court exercised this power to dissolve marriages that were irretrievably broken.

3. Analysis of Relevant Case Law:
The Court noted various cases where power under Article 142 was exercised to waive the statutory period, including Romesh Chander v. Savitri, Kanchan Devi v. Promod Kumar Mittal, and others. These cases highlighted that such power was used to avoid prolonged agony and to save parties from further litigation when the marriage was beyond salvage.

4. Consideration of the Mandatory or Directory Nature of Section 13B(2):
The Court observed that the question of whether Section 13B(2) is mandatory or directory was not addressed in Manish Goel. The Court appointed an amicus curiae to assist in determining whether the provision is mandatory or can be waived in the interest of justice. The amicus curiae argued that the waiting period is procedural and can be waived in exceptional situations, supported by judgments from various High Courts.

5. Principles for Waiver of the Six-Month Period:
The Court considered the principles for determining whether a statutory provision is mandatory or directory, emphasizing the need to consider the context, subject matter, and object of the provision. The object of Section 13B(2) is to provide a cooling-off period to avoid hasty decisions but not to perpetuate a purposeless marriage.

6. Conditions for Waiver of the Waiting Period:
The Court concluded that the six-month period under Section 13B(2) is directory and can be waived if:
i) The statutory period of separation is already over before the first motion.
ii) All efforts for mediation and reconciliation have failed.
iii) The parties have genuinely settled their differences.
iv) The waiting period will only prolong their agony.

7. Procedure for Waiver Application:
The waiver application can be filed one week after the first motion, and the Court has the discretion to waive the waiting period if the above conditions are met. The Court can use video conferencing and allow representation through close relations if necessary.

Conclusion:
The Court held that the six-month period under Section 13B(2) is not mandatory but directory, allowing the concerned Court to exercise its discretion based on the facts and circumstances of each case. The parties were given liberty to move the concerned court for fresh consideration in light of this order. The appeal was disposed of accordingly.