LexAMARDEEP SINGH versus HARVEEN KAUR
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[2017] 8 S.C.R. 925 AMARDEEP SINGH v. HARVEEN KAUR (Civil Appeal No. 11158 of2017) SEPTEMBER 12, 2017 [ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.) Hindu Marriage Act, 1955: A B s.13B(2) - Mutual consent - Cooling period of 6 months - Object of - Held: The object of the cooling of period was to C 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 D reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. s.138(2) - Provision mandatory or directory - Whether the minimum period of six months stipulated under s. J 3B(2) of the Act E for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional ·situations - Held: Jn 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 is applicable where F the Court dealing with a divorce by mutual consent is satisfied that a case is made out to waive the statutory period uls.J 3B(2) - it can do so after considering that the statutory period of six months specified in s.138(2), in addition to the statutory period of one year u!s.J 3B(J) of separation of parties is already over before the first motion itself; that all efforts for mediation/conciliation to reunite G the parties have failed; that the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; and that the waiting period will only prolong their agony- The waiver application can be filed one week H 925 926 SUPREME COURT REPORTS [2017] 8 S.C.R. A 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 the period mentioned in s. 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in B the facts and circumstances of each case - Constitution of India - Art. 142 - Interpretation of statutes - Legislative intent. Disposing of the appeal, the Court HELD: 1. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts c at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. [Para 14[ [934-C-D) D E . F Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383 ; Manish Goel v. Rohini Goel (2010) 4 SCC 393 : [20101 2 SCR 414 ; Poonam v. Sumit Tanwar (2010) 4 SCC 460 : (2010) 3 SCR 557 ; Neeti Malviya v. Rakesh Ma/viya (2010) 6 SCC 413 : [2010[ 6 SCR 1103 ; Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194 ; Ani/ Kumar Jain v. Maya Jain (2009) 10 SCC 415 : [2009) 14 SCR 90 ; K. Omprakash v. K. Nalini AIR 1986 AP 167 (DB); Roopa Reddy v. Prabhakar Reddy AIR 1994 Kar 12 (DB) ; Dhanjit Vadra v. Smt. Beena Vadra AIR 1990 Del 146 ; Dinesh Kumar Shukla v. Smt. Neeta AIR 2005 MP 106 (DB); M. Krishna Preetha v. Dr. Jayan Moorkkanatt AIR 2010 Ker 157 - referred to . 2. 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 G 1976, the concept of divorce by mutual consent was introduced. H However, Section 13B(2) contains a bar to divorce bei:ng granted before six months of time elapsing after filing 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 AMARDEEP SINGH v. HARVEEN KAUR 927 mutual consent only if there is no chance for reconciliation. The A 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 insp
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