|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5946 OF 2012
(Arising out of SLP(C)No.21084 of 2012)
1 Devinder Singh Narula … Appellant
Vs.
2 Meenakshi Nangia … Respondent
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. This appeal arises out of an order passed by the Additional District
Judge-01, West Delhi, on 13.4.2012 in HMA No.204/2012, while
entertaining a joint petition filed by the parties under Section 13-B
of the Hindu Marriage Act, 1955. On such petition being presented,
the learned Court below posted the matter on 15.10.2012 for the
purpose of second motion, as contemplated under Section 13-B of the
aforesaid Act, which is extracted hereinbelow for reference:-
“13-B.Divorce by mutual consent – (1) Subject to the provisions of
this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district Court by both the parties
to a marriage together, whether such marriage was solemnized before
or after the commencement of the Marriage Laws (Amendment)Act,
1976, on the ground that they have been living separately for a
period of one year or more, that they have not been able to live
together and that they have mutually agreed that the marriage
should be dissolved.
3. The Section itself provides for a cooling period of six months on the
first motion being moved, in the event the parties changed their minds
during the said period. Accordingly, after the initial motion and the
presentation of the petition for mutual divorce, the parties are
required to wait for a period of six months before the second motion
can be moved, and at that point of time, if the parties have made up
their minds that they would be unable to live together, the Court,
after making such inquiry as it may consider fit, grant a decree of
divorce declaring the marriage to be dissolved with effect from the
date of the decree.
4. Aggrieved by the said order of the learned Additional District Judge,
fixing the date of the 2nd motion after six months, the petitioner has
moved this Court by way of this appeal, relying on a decision of this
Court in Anil Kumar Jain vs. Maya Jain [(2009) 10 SCC 415], whereby
after arriving at a conclusion that the marriage between the parties
had broken down irretrievably, this Court felt justified to invoke its
powers under Article 142 of the Constitution.
5. On behalf of both the parties it was urged that since more than 18
months had elapsed since the original petition under Section 13 of the
Hindu Marriage Act, 1955, have been filed, the said period could be
counted towards the cooling period of six months stipulated under
Section 13-B of the above Act. It was urged that by such reckoning
the parties have already completed the waiting period of six months,
as envisaged under Section 13-B of the Act.
6. It was also urged that the other conditions contained in Section 13-
B(1) of the Act had also been satisfied as the parties had been living
separately for more than a year and had mutually agreed that the
marriage should be dissolved. It was urged that except for the
formality of not having made an application under Section 13-B, the
other criteria had been duly fulfilled and having regard to the
language of Section 13-B, a decree of dissolution of the marriage by
way of mutual divorce should not be denied to the parties, since four
months out of waiting period of six months contemplated under Section
13-B had already been completed.
7. It was contended that as was done in the case of Anil Kumar Jain
(supra), this Court could invoke its powers under Article 142 of the
Constitution in the best interest of the parties. It was urged that
technicality should be tampered by pragmatism, if substantive justice
was to be done to the parties.
8. On behalf of the State it was submitted that in view of the statutory
provisions, the prayer being made on behalf of the petitioner and the
respondent wife should not be entertained as that would lead to
confusion in the minds of the public and would be against the public
interest.
9. We have carefully considered the submissions made on behalf of the
parties and have also considered our decision in Anil Kumar Jain’s
case (supra). It is no doubt true that the Legislature had in its
wisdom stipulated a cooling period of six months from the date of
filing of a petition for mutual divorce till such divorce is actually
granted, with the intention that it would save the institution of
marriage. It is also true that the intention of the Legislature cannot
be faulted with, but there may be occasions when in order to do
complete justice to the parties it becomes necessary for this Court to
invoke its powers under Article 142 in an irreconcilable situation. In
fact, in the case of Kiran vs. Sharad Dutt [(2000) 10 SCC 243], which
was considered in Anil Kumar Jain’s case, after living separately for
many years and 11 years after initiating proceedings under Section 13
of the Hindu Marriage Act, the parties filed a joint application
before this Court for leave to amend the divorce petition and to
convert the same into a proceeding under Section 13-B of the Act.
Treating the petition as one under Section 13-B of the aforesaid Act,
this Court by invoking its powers under Article 142 of the
Constitution, granted a decree of mutual divorce at the stage of the
SLP itself. In different cases in different situations, this Court
had invoked its powers under Article 142 of the Constitution in order
to do complete justice between the parties.
10. Though we are not inclined to accept the proposition that in every
case of dissolution of marriage under Section 13-B of the Act the
Court has to exercise its powers under Article 142 of the
Constitution, we are of the opinion that in appropriate cases
invocation of such power would not be unjustified and may even prove
to be necessary. The question with which we are faced is whether this
is one of such cases?
11. As will appear in the averments made in this appeal, the appellant
filed a petition under Section 12 of the Hindu Marriage Act on
1.6.2011 on the ground that the marriage contracted on 26.3.2011, was
a nullity; that the parties had been living separately since their
marriage and have not cohabitated with each other since 1.6.2011 and
in future also they could never live together under one roof.
According to the parties, they are residing separately from each other
for the last one year and the respondent was presently working
overseas in Canada. It is with such object in mind that during the
pendency of the proceedings under Section 12 of the Act the parties
agreed to mediation and during mediation the parties agreed to
dissolve their marriage by filing a petition under Section 13-B of the
above Act for grant of divorce by mutual consent. In the proceedings
before the Mediator, the parties agreed to move appropriate petitions
under Section 13-B(1) and 13-B(2) of the Act. A report was submitted
by the Mediator of the Mediation Centre of the Tis Hazari Courts to
the Court in the pending HMA No.239 of 2011. It is pursuant to such
agreement during the mediation proceedings that an application was
filed by the parties in the aforesaid pending HMA on 15.12.2011
indicating that they had settled the matter through the mediation
centre and that they would be filing a petition for divorce by mutual
consent on or before 15.4.2012. On the strength of the said petition,
the HMA proceedings were disposed of as withdrawn. Subsequently, on
13.4.2012 the parties filed a joint petition under Section 13-B of the
Act on which the order came to be passed by the learned Additional
District Judge -01, West Delhi, fixing the date for the second motion
on 15.10.2012.
12. It is quite clear from the materials on record that although the
marriage between the parties was solemnized on 26.3.2011, within 3
months of the marriage the petitioner filed a petition under Section
12 of the Hindu Marriage Act, 1955, for a decree of nullity of the
marriage. Thereafter, they have not been able to live together and
lived separately for more than 1 year. In effect, there appears to be
no marital ties between the parties at all. It is only the provisions
of Section 13-B(2) of the aforesaid Act which is keeping the formal
ties of marriage between the parties subsisting in name only. At
least the condition indicated in Section 13-B for grant of a decree of
dissolution of marriage by the mutual consent is present in the
instant case. It is only on account of the statutory cooling period
of six months that the parties have to wait for a decree of
dissolution of marriage to be passed.
13. In the above circumstances, in our view, this is one of those cases
where we may invoke and exercise the powers vested in the Supreme
Court under Article 142 of the Constitution. The marriage is
subsisting by a tenuous thread on account of the statutory cooling off
period, out of which four months have already expired. When it has
not been possible for the parties to live together and to discharge
their marital obligations towards each other for more than one year,
we see no reason to continue the agony of the parties for another two
months.
14. We, accordingly, allow the appeal and also convert the pending
proceedings under Section 12 of the Hindu Marriage Act, 1955, before
the Additional District Judge-01, West Delhi, into one under Section
13-B of the aforesaid Act and by invoking our powers under Article 142
of the Constitution, we grant a decree of mutual divorce to the
parties and direct that the marriage between the parties shall stand
dissolved by mutual consent. The proceedings before the Additional
District Judge-01, West Delhi, being HMA No.204 of 2012, is withdrawn
to this Court on consent of the parties and disposed of by this order.
15. In the facts of the case, the parties shall bear their own costs.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated:22.8.2012.
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