Six Months Waiting Period In Section 13B(2) Of Hindu Marriage Act For Divorce By Mutual Consent Not Mandatory: SC
Settling a contentious issue, a two Judge Bench of Supreme Court comprising Justices A.K. Goel and UU Lalit held that the 6 months waiting period prescribed under Section 13B(2) of Hindu Marriage Act for divorce by mutual consent is not mandatory, and can be waived under certain circumstances.
There were conflicting views by the Supreme Court on this point. While it was held in Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194 that the period can be waived by the Supreme Court in exercise of powers under Article 142 of the Constitution of India, a contrary view was taken in Manish Goel v. Rohini Goel (2010) 4 SCC 393, wherein it was held that Article 142 could not be invoked contrary to a statutory prescription. Though the matter was referred to a larger bench to resolve the conflict, the issue got infructuous in the meantime as parties got divorce in the meantime. Recently in 2016, the Supreme Court had waived the waiting period under Article 142.
But the issue whether Family Courts could waive the period was not considered before in any of the decisions. In the case dealt with by the Court, the spouses were living separately for more than eight years, and nothing would have come out of the waiting period, the marriage being irretrievably broken. This prompted the Court to deal with the issue, with the assistance of amicus curie Senior Advocate K V Vishwanathan.
The Court held that that the period mentioned in Section 13B(2) was not mandatory but directory, and that it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there was no possibility of parties resuming cohabitation and there were chances of alternative rehabilitation.
It was held that where the Court dealing with a matter was satisfied that a case was made out to waive the statutory period under Section 13B(2), it can do so after considering the following :
- 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;
- 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;
- The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
- The waiting period will only prolong their agony.