Supreme Court in its Judgment has observed that that the Statutory period of 6 months, as 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.
The judgement came out in a case titled as AMARDEEP SINGH vs. HARVEEN KAUR.
The marriage between the parties took place on 16th January, 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28th April, 2017 a settlement was arrived at to resolve all the disputes and seeks divorce by mutual consent. The respondent wife is to be given permanent alimony of Rs.2.75 crores. Accordingly, Suit was filed before the Family Court and on 8th May, 2017 statements of the parties were recorded. The appellant husband has also handed over two cheques of Rs.50,00,000/-, which have been duly honoured, towards part payment of permanent alimony. Custody of the children is to be with the appellant. They have sought waiver of the period of six months for the second motion on the ground that they have been living separately for the last more than eight years and there is no possibility of their re union. Any delay will affect the chances of their resettlement. The parties have moved Supreme Court on the ground that only Supreme Court can relax the six months period as per the previous decisions of the Court.
The question which came up for consideration before the Hon’ble Supreme Court was “whether provision of Section 13B of the Hindu Marriage, Act, 1955 laying down cooling off period of six months is a mandatory requirement or it is open to the Family Court to waive the same having regard to the interest of justice in an individual case.“
The object of the Section 13B 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 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
Decision of the Court:
Supreme Court held that in determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court was of the view that 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 :
- 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;
- The waiver Application can be filed one week 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 at the discretion of the Court.
Read Order here: