Divorce By Mutual Consent: separation of one year not
mAndatory
As
per The Hindu Marriage Act (HMA) 1955 a divorce by mutual consent has certain mandates
to be completed, before preferring a petition under Section 13 B (1) &(2) of HMA. In order to prefer and maintain a
petition u/s 13 B of HMA, the parties are required to remain separate for
continuous period of one year after marriage, for filing a petition for divorce,
with mutual consent. It was felt, some time, that the condition was onerous in
case of irretrievable breakdown of marriage. However, the statutory
prescription as a mandate had to be complied with. It is no longer required.
The
Full bench of Delhi High Court in a matter captioned as Shiksha Kumari Vs
Santosh Kumar , MAT App (FC) 111/2025 in a reference from the division
bench, has held that the period of one year of separation, as a mandate, is not
necessary.
To
set the tone in perspective, the full bench, interestingly right at the outset
had observed as under:
“Is
a court mandated to stall divorce by mutual consent, thrusting unwilling
parties – not into marital bliss, but into a matrimonial abyss”?
The
above observation came from judgment dated 22.04.2025 rendered by a Division
Bench of Delhi High Court in MAT.APP. (F.C.) No. 111/2025, concerning the
timeline prescribed for the presentation of a petition for divorce by mutual
consent under section 13B(1) of the Hindu Marriage Act, 1955. In the reference,
the Division Bench had observed that having regard to the view taken by an
earlier Division Bench of Delhi High court in Sankalp Singh vs. Prarthana
Chandra, 2013 SCC OnLine Del 855, in the present matter, it was observed
that the interpretation adopted in Sankalp Singh may warrant
reconsideration.
In
the light of the divergent opinion, that the Division Bench was inclined to
express in its judgment dated 22.04.2025, a specific question of law was formulated
and requested the Hon‘ble the Chief Justice of Delhi High Court to place the
matter before a Full Bench of Delhi High Court for authoritative determination.
The legal questions referred to the Full Bench read as follows:
(a) Whether a petition under
Section 13B(1) of the Hindu Marriage Act can be filed by the parties before
completing the period of separation of one year?;
(b) If the answer to the above
question is in the affirmative, whether the period of six months between the
presentation of the First Motion under Section 13B(1) of the Hindu Marriage Act
and the Second Motion under Section 13B(2) of the Hindu Marriage Act, can be
waived off by the learned Court even though the parties have not been living
separately for more than one year on the date when such waiver is prayed for?
The text of the Section 13 B of the HMA may be perused
before delving into it, further :
13B. 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 (68 of 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.
(2) On the motion of both the
parties made, not earlier than six months after the date of the presentation
of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the
meantime, the court shall, on being satisfied, after hearing the parties and
after making such inquiry as it thinks fit, that a marriage has been solemnized
and that the averments in the petition are true, pass a decree of divorce
declaring the marriage to be dissolved with effect from the date of the
decree.
Section
14 of the HMA shall also be pertinent in the context, which reads as follows :
14. No petition for divorce to be
presented within one year of marriage.—
(1)
Notwithstanding anything contained in this Act, it shall not be competent
for any court to entertain any petition for dissolution of a marriage by a
decree of divorce, unless at the date of the presentation of the petition one
year has elapsed since the date of the marriage: Provided that the court
may, upon application made to it in accordance with such rules as may be made
by the High Court in that behalf, allow a petition to be presented before
one year has elapsed since the date of the marriage on the ground that the case
is one of exceptional hardship to the petitioner or of exceptional depravity on
the part of the respondent, but if it appears to the court at the hearing
of the petition that the petitioner obtained leave to present the petition by
any misrepresentation or concealment of the nature of the case, the court may,
if it pronounces a decree, do so subject to the condition that the decree
shall not have effect until after the expiry of one year from the date of the
marriage or may dismiss the petition without prejudice to any petition
which may be brought after expiration of the said one year upon the same or
substantially the same facts as those alleged in support of the petition so
dismissed.
(2) In disposing
of any application under this section for leave to present a petition for
divorce before the expiration of one year from the date of the marriage, the
court shall have regard to the interests of any children of the marriage and to
the question whether there is a reasonable probability of a reconciliation
between the parties before the expiration of the said one year.
Before
going further, Sankalp Singh (Supra) may be dealt with. In para
30 of the said judgment , it was held as under:
“30. A more liberal construction
can envisage the application of the proviso to Section 14(1) of the said Act
without compromising on the essential ingredients of Section 13B(1) of the said
Act. This is possible by ensuring that none of the three essential ingredients
are compromised. Thus, parties should have been living separately for one (1)
year or more, that they have not been able to live together and have mutually
agreed that the marriage should be dissolved. However, the dissolution of
marriage has to take effect only after the hiatus period of six (6) to eighteen
(18) months, on the second motion being filed. Thus, before such a decree of
divorce is passed post second motion the period of one (1) year of separation
ought to have elapsed but in order to present the first motion, the requirement
of one (1) year separation would not apply provided it meets the parameters of
proviso to Section 14(1) of the said Act. This view would not compromise on the
essential ingredients of any part of Section 13B of the said Act and
simultaneously respect the wisdom of the legislature which enacted Section 13B
of the said Act and incorporated it by insertion with sub-section (1) beginning
with “Subject to the provisions of this Act” which would include Section 14. Not
only that Section 14 of the said Act itself begins with a “Notwithstanding”
clause. This would, thus, be the harmonious construction of the provisions of
the said Act which would enable to give meaning to all the relevant provisions
of the said Act without compromising the ingredients of any. Such a course of
action is possible especially because there will not be a waiver of minimum six
(6) months hiatus period between the grant of first motion and the second
motion being presented with the additional condition under Section 13B(1) of
the said Act that even if the first motion is presented within the first year
of marriage as per the satisfaction of proviso to Section 14(1) of the said
Act, the decree of divorce would only be granted once the period of one (1)
year has elapsed from the separation.”
“32. We, thus, set aside the
impugned order dated 12.6.2012 with a direction to the Family Court, Patiala
House to re-examine the case for grant of the first motion on the application
earlier presented, but permitting the parties to place on record the material
in support of their application under proviso to Section 14(1) of the said Act
within fifteen (15) days from today. If a case of exceptional hardship or
exceptional depravity is made out then the first motion can be passed and the
second motion can be presented within the window of six (6) to eighteen (18)
months from the date when the first motion could have been accepted without
waiving the minimum period of six (6) months and also ensure that the period of
one (1) year of separation from 12.4.2012 has expired”.
It
may thus be noted that in in Sankalp Singh (Supra), the
Division Bench has envisaged the application of the proviso to section 14(1) of
the HMA, adopting a liberal construction of that provision. The Division Bench
has held that, so as not to compromise, on the essential ingredients of section
13 B(1) of the HMA, though, the first motion can be presented even
before the 01-year period of separation prescribed, under section 13B(1) of the
HMA has elapsed, that would, however, be subject to the qualification that the
second motion under section 13B (2) would be allowed and the divorce decree
would be granted only after the 01-year of separation period, as
required under section 13B(1), is complete.
LAW ENUNCIATED BY
SUPREME COURT
(1)
In Smt. Sureshta Devi vs. Om Prakash, (1991) 2 SCC 25 the Supreme Court has held that the
requirement that parties must have been living separately for a period of
01-year is one of the pre-requisites for entertaining a petition under section
13B(1) of the HMA. The supreme court had thus observed:
“8.
There are three other requirements in sub-section (1). They are:
(i)
They have been living separately for a period of one year,
(ii)
They have not been able to live together, and
(iii) They have mutually agreed
that marriage should be dissolved.
“9. The living separately‘ for a period of one year
should be immediately preceding the presentation of the petition. It is
necessary that immediately preceding the presentation of petition, the parties
must have been living separately. The expression ‗living separately‘,
connotes to our mind not living like husband and wife. It has no reference to
the place of living. The parties may live under the same roof by force of
circumstances, and yet they may not be living as husband and wife. The parties
may be living in different houses and yet they could live as husband and wife.
What seems to be necessary is that they have no desire to perform marital
obligations and with that mental attitude they have been living separately for
a period of one year immediately preceding the presentation of the petition.
The second requirement that they „have not been able to live together‟ seems to indicate the concept of
broken down marriage and it would not be possible to reconcile themselves. The
third requirement is that they have mutually agreed that the marriage should be
dissolved”.
The
Supreme Court therefore had enunciated 03 pre-requisites that are
required to be satisfied before a petition seeking divorce by mutual consent
can be presented under section 13B(1) of the HMA. The 03 pre-requisites
are:
(i) The parties must have been living
separately for a period of at least 01-year immediately preceding the
presentation of the first motion: The Supreme Court had clarified that living
separately has no reference to the place of living, that implies, parties may
reside under the same roof or may reside physically apart, but refers to the
parties ―not living as husband and wife‖ and ―having no desire to perform
marital obligations, with the mental attitude of living separately for a period
of at least 01-year immediately preceding the presentation of the first motion;
(ii) The parties have not been able to live together, which refers
to the situation of a irretrievably broken-down marriage, with no possibility
of re-conciliation; and
(iii)
The parties have mutually agreed that the marriage be
dissolved.
(2)
Subsequently,
the Supreme Court in Ashok Hurra vs. Rupa Bipin Zaveri, (1997) 4
SCC 226 another co-equal Bench of the Supreme Court, though without formally differing
with the decision in Sureshta Devi, expressed certain reservations
regarding the reasoning adopted in that judgment, opining that certain
observations in Sureshta Devi appear to be very wide and may require
reconsideration in an appropriate case. A closer reading of Ashok
Hurra (Supra) would however show, that the Bench did not
disagree with the 03 pre-requisites referred-to above as laid-down in Sureshta
Devi, but only observed that Sureshta Devi appears to have laid-down,
too wide a proposition, when it said that the consent of parties must continue
till the divorce decree is passed.
(3)
Yet again, the 2 bench of Supreme Court in Anil Kumar Jain vs. Maya Jain,
(2009) 10 SCC 415 also re-affirmed the principles laid down in Sureshta
Devi, though it again resolved the impasse between the couple in that case
by invoking their powers under Article 142 of the Constitution of India to
grant relief, even though continuing mutual consent was not forthcoming.
(4)
The
Supreme Court in Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC
746 in which case had somewhat changed the earlier dicta. In this case, the
parties had been living separately for over 08 years and were agreed that there
was no possibility of reunion, for the first time a 02-Judge Bench of the
Supreme Court held that the 06-month waiting period prescribed under section
13B(2) of the HMA is not mandatory but directory; and
further observed that the ―court possesses the discretion to waive the
06-month statutory period prescribed under section 13B(2) of the HMA, provided
certain conditions are satisfied. The Supreme Court observed as follows:
“―16. We have given due
consideration to the issue involved. 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 1976, the concept of
divorce by mutual consent was introduced. However, Section 13-B(2) contains a
bar to divorce being 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 mutual
consent only if there is no chance for reconciliation.
―17. 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-off 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.
―18. 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 v.
Nanhku [Kailash v. Nanhku, (2005) 4 SCC 480] as follows : (SCC pp. 496-97, para
34)”.
The
judicial precedents, thus far, in this regard, did not lead to ipse dixit,
as no universal rule was formulated, rather, it was only to the effect that the
regard must have been given to the language, to the context, subject-matter and
object of the statutory provision in question, in determining whether the same
is mandatory or directory. The circumstances, namely, that the statute provides
for a contingency of the non-compliance with the provisions; the fact that the
non-compliance with the provisions is or is not visited by some penalty; the
serious or the trivial consequences, that flow therefrom; and above all,
whether the object of the legislation will be defeated or furthered were to be
taken note of. Taking a step further, what imply is that If object of the enactment will be defeated
by holding the same directory, it will be construed as mandatory, whereas if by
holding it mandatory serious general inconvenience will be created to innocent
persons without very much furthering the object of enactment, the same will be
construed as directory.”
What
therefore emerges is that where the court dealing with a matter is satisfied
that a case is made out to waive the statutory period under Section 13-B(2),
it can do so after considering the following:
(i) the statutory period of six
months specified in Section 13-B(2), in addition to the statutory period of
one year under Section 13-B(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 32-A 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;
(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.
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 in the discretion of
the court concerned.
The
views culled out in the above context were that the period mentioned in
Section 13-B(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.
(5)
In Amit Kumar vs. Suman Beniwal, 2023, 17 SCC 648 the Supreme
Court is pleased to further widened the scope of the court‘s discretion in
waiving the 06-month waiting period under section 13B(2) of the HMA, with the
following observations:
―20. The factors mentioned
in Amardeep Singh v. Harveen Kaur [Amardeep Singh v. Harveen Kaur, (2017) 8
SCC 746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505], in para 19 are
illustrative and not exhaustive. These are factors which the court is obliged
to take note of. If all the four conditions mentioned above are fulfilled, the
court would necessarily have to exercise its discretion to waive the statutory
waiting period under Section 13-B(2) of the Marriage Act.
―21. The Family Court, as well
as the High Court, have misconstrued the judgment of this Court in
Amardeep Singh v. Harveen Kaur [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC
746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505] and proceeded on the
basis that this Court has held that the conditions specified in para 19 of the
said judgment, quoted hereinabove, are mandatory and that the statutory
waiting period of six months under Section 13-B(2) can only be waived if all
the aforesaid conditions are fulfilled, including, in particular, the
condition of separation of at least one-and-half year's before making the
motion for decree of divorce.
―22. It is well settled that a
judgment is a precedent for the issue of law that is raised and decided. A
judgment is not to be read in the manner of a statute and construed with
pedantic rigidity. In Amardeep Singh v. Harveen Kaur [Amardeep Singh v. Harveen
Kaur, (2017) 8 SCC 746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505], this
Court held that the statutory waiting period of at least six months mentioned
in Section 13-B(2) of the Hindu Marriage Act was not mandatory but directory
and that it would be open to the Court to exercise its discretion to waive the
requirement of Section 13-B(2), having regard to the facts and circumstances of
the case, if there was no possibility of reconciliation between the spouses,
and the waiting period would serve no purpose except to prolong their agony. *
* * * *
―26. For exercise of the
discretion to waive the statutory waiting period of six months for moving the
motion for divorce under Section 13-B(2) of the Hindu Marriage Act, the
Court would consider the following amongst other factors:
(i) the length
of time for which the parties had been married;
(ii) how long
the parties had stayed together as husband and wife;
(iii) the length
of time the parties had been staying apart;
(iv) the length
of time for which the litigation had been pending;
(v) whether
there were any other proceedings between the parties;
(vi) whether
there was any possibility of reconciliation;
(vii) whether
there were any children born out of the wedlock;
(viii) whether the parties had
freely, of their own accord, without any coercion or pressure, arrived at a
genuine settlement which took care of alimony, if any, maintenance and custody
of children, etc.
(6) The Supreme Court, through the
Constitution bench in Shilpa Sailesh vs. Varun Sreenivasan (2023)
14 SCC 231 has held that section 13B of the HMA does not impose any fetters on their
powers to grant divorce by mutual consent ―when the substantive
conditions of the section are fulfilled; and where, after referring to
certain factors, the court is convinced that a decree of divorce should be
granted. The question in Shilpa Sailesh was however only in relation to
reducing or waiving of the 06-month cooling-off period between
the filing of the first motion and the second motion under Article 142 of the
Constitution; but some observations of the Supreme Court has also thrown
valuable light on the trend of the law on the point. The Full bench of Delhi
High Court has thus noted the following observations in Shilpa Sailesh (Supra):
―26. However, there are cases
of exceptional hardship, where after some years of acrimonious litigation and
prolonged suffering, the parties, with a view to have a fresh start, jointly
pray to the court to dissolve the marriage, and seek waiver of the need to move
the second motion. On account of irreconcilable differences, allegations
and aspersions made against each other and the family members, and in some
cases multiple litigations including criminal cases, continuation of the
marital relationship is an impossibility. The divorce is inevitable, and the
cooling off period of six months, if at all, breeds misery and pain, without
any gain and benefit. These are cases where the object and purpose behind
sub-section (2) to Section 13-B of the Hindu Marriage Act to safeguard against
hurried and hasty decisions are not in issue and question, and the procedural
requirement to move the court with the second motion after a gap of six months
acts as an impediment in the settlement. At times, payment of alimony and permanent
lump sum maintenance gets delayed, while anxiety and suspicion remain. Here,
the procedure should give way to a larger public and personal interest of the
parties in ending the litigation(s), and the pain and sorrow effected, by
passing a formal decree of divorce, as de facto the marriage had ended much
earlier.
―31. However, there is a
difference between existence of a power, and exercise of that power in a given
case. Existence of power is generally a matter of law, whereas exercise of
power is a mixed question of law and facts. Even when the power to pass a decree
of divorce by mutual consent exists and can be exercised by this Court under
Article 142(1) of the Constitution of India, when and in which of the cases the
power should be exercised to do “complete justice” in a “cause or matter” is an
issue that has to be determined independent of existence of the power. This
discretion has to be exercised on the basis of the factual matrix in the
particular case, evaluated on objective criteria and factors, without ignoring
the objective of the statutory provisions. In Amit Kumar v. Suman Beniwal
[Amit Kumar v. Suman Beniwal, (2023) 17 SCC 648], this Court has held that
reading of sub-sections (1) and (2) to Section 13-B of the Hindu Marriage Act
envisages a total waiting period/gap of one-and-a-half years from the date of
separation for the grant of decree of divorce by mutual consent. Once
the condition for waiting period/gap of one-and-a-half years from the date of
separation is fulfilled, it can be safely said that the parties had time to
ponder, reflect and take a conscious decision on whether they should really put
the marriage to end for all times to come. This period of separation
prevents impulsive and heedless dissolution of marriage, allows tempers to cool
down, anger to dissipate, and gives the spouses time to forgive and forget.
―33. In our opinion, Section 13-B of the
Hindu Marriage Act does not impose any fetters on the powers of this Court to
grant a decree of divorce by mutual consent on a joint application, when the
substantive conditions of the section are fulfilled and the Court, after referring
to the factors mentioned above, is convinced and of the opinion that the decree
of divorce should be granted.
―75.
In view of our findings on the first question, this question has to be answered
in the affirmative, inter alia, holding that this Court, in view of
settlement between the parties, has the discretion to dissolve the marriage by
passing a decree of divorce by mutual consent, without being bound by the
procedural requirement to move the second motion. This power should be
exercised with care and caution, keeping in mind the factors stated in Amardeep
Singh [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 : (2017) 4 SCC (Civ)
804 : (2017) 3 SCC (Cri) 505] and Amit Kumar [Amit Kumar v. Suman Beniwal,
(2023) 17 SCC 648]. This Court can also, in exercise of power under Article
142(1) of the Constitution of India, quash and set aside other proceedings and
orders, including criminal proceedings.
The
full bench of Delhi High Court in Shiksha Kumari (Supra) has observed that the
power of the Supreme Court, under Article 142 of the Constitution is unfettered
by the provisions of section 13B of the HMA in granting divorce by mutual
consent, what however emerged from the said decision is that the 06-month
waiting period prescribed under section 13 B (2) of the HMA between the filing
of the first motion and the second motion, is not sacrosanct or immutable.
Moreover, in Shilpa Sailesh(Supra), the
Supreme Court dealt only with the waiver of the 06-month period stipulated
under section 13B(2) of the HMA; and that too, from the perspective as to
whether it was available to the Supreme Court in exercise of its powers
under Article 142 of the Constitution to waive that period and grant divorce by
mutual consent.
The
Full bench of Delhi High Court in Shiksha Kumari (Supra)
has therefore, on the premise of aforesaid dicta has observed that though in Amit
Kumar (Supra), the Supreme Court laid-down down the above 08
factors which should be considered by courts while waiving-off the requirement
of 06-month period between the first motion and the second motion, in that case,
the Supreme Court had yet again exercised its plenary powers under Article 142
of the Constitution to grant divorce.
This
was necessitated perhaps as a decision of a 02-Judge Bench of the Supreme Court
in Manish Goel vs. Rohini Goel, (2010) 4 SCC 393 had disapproved
the use of Article 142 for that purpose, in contradistinction to the view taken
in several earlier judgments of the Supreme Court, including in Anjana
Kishore vs. Puneet Kishore (2002) 10 SCC 194 and Anil Kumar Jain (Supra).
After
perusing the aforesaid judicial precedents , the full bench of Delhi High Court
had also noted the judgments passed by the High Court and it was noticed that a
single judge in Pooja Gupta & Anr. vs Nil, 2003 SCC
OnLine Del 1197, while dealing with a
first appeal against an order passed in a matrimonial case, refusing to
entertain a first motion prior to the 01-year period stipulated in section
13B(1) of the HMA, applied the proviso to section 14(1) of the HMA, further
observing that it is permissible to waive the 01-year period, provided the
court satisfies itself inter-alia as to the following:
―(a)
the maturity and the comprehension of the spouses;
(b)
absence of coercion/intimidation/undue influence;
(c)
the duration of the marriage sought to be dissolved;
(d)
absence of any possibility of reconciliation;
(e)
lack of frivolity;
(f)
lack of misrepresentation or concealment;
(g)
the age of the spouses and the deleterious effect of the continuance of a
sterile marriage on the prospects of re-marriage of the parties.
Furthermore,
the learned Single Judge also satisfied himself, by personally examining the
parties, that the aforesaid conditions had been fulfilled; and was satisfied
with the explanation given by the parties as regards the exceptional hardship
they would face if the marriage was to continue.
The
full bench of Delhi High Court had also observed, though, that contrary views
were adopted by other co-ordinate benches that the 01-year period under section
13B(1) of the HMA is mandatory and cannot be waived. Such was the view of the
learned Single Judges of Delhi High Court in Urvashi Sibal & Anr. vs.
Govt. of NCT of Delhi, 2010 SCC OnLine Del 18 , in Mohin Saili vs. Nil, 2010 SCC
OnLine Del 4154 and Sunny vs. Sujata 2012 SCC OnLine Del 2439. No doubt, the very rationale of this view was
essentially, that section 13B is a complete code in itself; and therefore,
parties cannot invoke the proviso to section 14(1) of the HMA to seek waiver of
the statutory period of 01-year of separation for filing a petition under
section 13B of the HMA; and that the prescription under section 13B(1) of the
HMA was mandatory and not directory. In Mohin Saili (Supra), it was
emphatically observed by the co-ordinate single judge bench of Delhi High Court
that the 01-year separation period under section 13B(1) is part of
substantive law and is not a mere procedural formality; and that the said
period cannot be waived merely for the convenience of the parties.
ANALYSIS
The
law has thus evolved and the jurisprudential landscape has undergone a
substantial transformation ever since, and contextually, thus, it may be apt to
summarise the most relevant verdicts of the Supreme Court on the point:
To
begin with in 1991, Sureshta Devi (Supra) , the Supreme Court has
held that the requirement that parties must have been living separately for a
period of 01-year contained in section 13B(1) of the HMA is a pre-requisite. Subsequently,
in 1997, in Ashok Hurra (Supra), a co-equal Bench of the Supreme
Court, while expressing some reservation about Sureshta Devi (Supra) but, it
was not overturned. In Ashok Hura (Supra) it was with reference to whether
it is necessary for the consent of parties to continue till the decree of
divorce is granted, and in that case, the second motion had come-up for
consideration beyond the 18-month period stipulated in section 13B(2) of the
HMA. Therefore, in Ashok Hurra the Supreme Court did not digress
from the view taken in Sureshta Devi on the point whether the 01-year
period prescribed in section 13B(1) of the HMA is a pre-requisite.
In
2009, while deciding Anil Kumar Jain (Supra), a 02-Judge Bench of
Supreme Court reaffirmed the principles laid-down in Sureshta Devi.
In
2017, in Amardeep Singh (Supra), the Supreme Court held that the
―court which would include the Family Court and the High Court - has the
discretion to waive the 06-month statutory period prescribed under section
13B(2) of the HMA. This observation of the Supreme Court is relevant, on point
of principle, and would aid us in deciding whether the timeline prescribed in
section 13B(1) of the HMA is mandatory or discretionary, in particular context
of Sankalp Singh having held that it is necessary for the
01-year separation period to have elapsed before a mutual consent divorce
decree is granted. In this case, the Supreme Court also laid down the 04
factors that the court must consider before waiving the 06-month cooling-off
period under section 13B(2) of the HMA, as referred-to above.
In
2021,
in Amit Kumar (Supra) , the Supreme Court held that the 04 factors
set-out by it in Amardeep Singh are not exhaustive but only
illustrative. A closer reading of Amit Kumar would show, that what the
Supreme Court held was that if the 04 factors set-out in Amardeep
Singh are fulfilled, then the courts – which would include the Family Court
and the High Court – must necessarily exercise discretion in favour of
waiving the 06-month waiting period prescribed under section 13B(2) of the HMA;
but, that even if those 04 factors are not fulfilled, the courts would not
be denuded of their power to exercise such discretion. The Supreme Court
also held that while exercising discretion to waive the 06-month period under
section 13B(2), the court – which would include the Family Court and the High
Court – would inter-alia consider the additional factors set-out in that
judgment.
In
2023,
in Shilpa Sailesh (Supra) , a Constitution Bench of the Supreme Court
held that Section 13B of the HMA does not impose any fetters on the powers
of the Supreme Court to grant divorce by mutual consent on a joint
application when the ―substantive conditions of the section‖
are fulfilled and the court is convinced and of the opinion that the decree of
divorce should be granted.17 In fact, it was observed that the Supreme Court
can grant divorce by mutual consent, even without requiring the parties to move
a second motion.18 To be sure, in this case, another Bench of the Supreme Court
had already granted divorce to the parties by mutual consent.
Clearly
therefore, divorce was granted in Shilpa Sailesh by the Supreme Court in
exercise of its plenary powers under Article 142 of the Constitution, which
does not amount to the Supreme Court laying-down law under Article 141
of the Constitution.
Full Bench scrutiny
It
is in the above context that the full bench of Delhi High Court had considered the
reference eon four aspects:
(1) Whether the Family Court and
the High Court can completely waive the 01-year period stipulated under section
13B(1) of the HMA, by allowing parties to present the first motion even before
they have lived separately for at least 01-year, by invoking the proviso to
section 14(1) of the HMA.
(2) Whether such waiver should be
permitted only in cases of ―exceptional hardship to the petitioner‖ or ―exceptional depravity on the part
of the respondent‖ as contemplated in the proviso
to section 14(1).
(3) In a case where the 01-year
period under section 13B(1) is waived, can the Family Court and the High Court
also waive the 06-month cooling-off period stipulated under section 13B(2) of
the HMA.
(4) Having waived the 01-year
period under section 13B(1) and the 06-month period under section 13B(2) of the
HMA, can the court allow the second motion and grant a decree of divorce by
mutual consent that is effective forthwith, or, can the second motion be allowed
and the divorce decree granted only after expiration of the 01-year separation
period stipulated under section 13B(1).
FINDINGS
The
Full bench of Delhi High Court in Shiksha Kumari (Supra) has upheld
the division bench Judgment of Delhi High Court in Sankalp Kumar
(Supra) and it is reiterated and reaffirmed that the statutory period of
01-year prescribed under section 13B(1) of the HMA as a pre-requisite for
presenting the first motion, can be waived. The full bench has also noted, that,
no judgment to the contrary of the Supreme Court was brought to the notice of
the full bench. It is thus held that as per the principles in Sankalp
Singh (Supra) , it is clarified that the 01-year period stipulated
under section 13B(1) of the HMA, for presenting the first motion may be waived
at the discretion of the Family Court or the High Court.
Consequently, it is legally permissible for a court to entertain a first motion
even prior to the expiry of the 01-year separation period.
For
completeness it may also be observed that the legal position that the 01-year
period stipulated under section 13B(1) of the HMA can be waived, as first held
in Pooja Gupta (Supra) by a Single Bench of this court and
echoed in What is held in Sankalp Singh(Supra) has also been followed by two Division Benches
of the Rajasthan High Court in Kuldeep Singh Shekhawat vs. Smt. Deeraj
Kanwar 2020 (1) RLW 688 (Raj) And Nitish Agarwal vs. Ms. Anchal Singhal
2020 (4) RLW 2717 (Raj.)
In
view of the various and diverse Single Benches judgments of Delhi High Court it
is now held by the full bench that to hold that section 13B of the HMA is a complete
code in itself and that the proviso to section 14(1) of the HMA does not
apply to petitions filed under section 13B of the HMA, is not the correct view.
It was accordingly held that in light of the decision of the Division Bench of Delhi
High court in Sankalp Singh (Supra), section 13B of the HMA is not a
complete code; and the judgments of
the various Single Benches of the Delhi High Court, taking the contrary view stands
overruled.
As
a necessary corollary, thereof, it emerges that the procedural framework
contained in the proviso to section 14(1) of the HMA can be pressed into
service in relation to section 13 B(1) of the HMA; and in appropriate cases the
proviso to section 14(1) can be invoked to entertain the first motion, to save
parties from remaining trapped in a manifestly unworkable matrimonial
relationship.
The
full bench has also noted that when section 14 of the HMA was enacted, the
provision for divorce by mutual consent under section 13 B was not part
of the statute and the latter provision was introduced by way of the amendment
to the HMA in 1976. Therefore, section 14 as originally contemplated, applied
(only) to contested divorce petitions filed under section 13 of the HMA, which
were based on ‘fault-theory‘. What is also noteworthy is the fact, that
simultaneously, with the introduction of section 13-B in the HMA vidé the
1976 amendment, permitting divorce by mutual consent, the Legislature also reduced
the time period, prescribed, before a divorce petition could be presented
under section 14, from 03 years to 01 year.
The
opening words of section 13B(1) of the HMA, begins with the phrase: “Subject to the provisions of this Act”,
meaning, thereby, that the provisions of section 13B(1), in their entirety,
are subject to the other provisions contained in the HMA. This aspect has been
considered by the Division Bench in Sankalp Singh (Supra). However, one
cannot be oblivious to the fact that when Sankalp Singh was
pronounced, the law, as it prevailed, then, prohibited the Family Court or the
High Court from waiving the 06-month period stipulated in section 13B(2) of
the HMA; that probably were the reason why the Division Bench in Sankalp
Singh made a qualified order. However, there can be no cavil with the
proposition that since section 13B(1) of the HMA begins, not with a non-obstante
clause, but instead with a subject-to clause, the Legislature has,
in so many words, made section 13B(1) subject to the other provisions of the
HMA. Section 14(1) of the HMA is one such provision. As the proviso to section 14(1) of the HMA permits
the court to waive the 01-year period that is otherwise prescribed under
section 14(1), prohibiting a court from entertaining any petition for
dissolution of marriage until the expiration of 01-year from the date of the
marriage. Such waiver of the 01-year period is however permitted only in
cases of exceptional hardship or exceptional depravity, as referred-to in that
proviso.
In
Sankalp Singh (Supra) the Division Bench has held that in
cases of exceptional hardship or exceptional depravity, as contemplated in the
proviso to section 14(1) of the HMA, the court may entertain the first
motion for divorce by mutual consent before the 01-year separation period is
over, but, the second motion must be allowed and the divorce decree must
be granted only after the parties have resided separately for at least
01-year, as contemplated in section 13B(1). It also says that the 06-month gap
stipulated between the first motion and the second motion, cannot be waived,
since that was the extant position of law at that time. In effect therefore, in
Sankalp Singh, what the Division Bench has done is to enforce the
01-year separation period, not at the stage of presentation of the first
motion, but at the stage when the second motion is allowed and a divorce
granted, by saying that the divorce decree would only take effect after the
01-year separation period is complete.
The
full bench has thus, opined that, the view that the timeline stipulated in
section 13B(1) of the HMA is immutable, would render the opening words of
section 13B of the HMA–viz., that the section is subject to the other
provisions of the statute – nugatory. As a sequitur of the above the full
bench agreed with the view taken by the Division Bench of Delhi High Court in Sankalp
Singh, insofar as it holds that a petition under section 13B(1) of the
HMA can be entertained even before parties have lived separately for a
period of 01-year.Howeevr, the full bench has differed from the view
taken in Sankalp Singh (Supra) when the Division Bench says that in
order to satisfy the pre-requisite under section 13B(1) of the HMA, if the
first motion is entertained and allowed before the parties have lived
separately for at least 01-year, the second motion must only be allowed and
a divorce decree can only be granted after the period of 01-year of
separation is complete. In the backdrop, it could also be appreciated that when
Sankalp Singh was pronounced, viz., in 2013, it was
impermissible to waive even the 06-month period under section 13 B(2); and the
law that the 06-month period could be waived came by way of the Supreme Court
ruling in Amardeep Singh only in 2017. Considering the manner in
which the law has progressed since 2013, the view taken in Sankalp Singh
on the aspect and it is held by the full bench that the second motion may
be entertained and allowed and a divorce decree may also be granted
even before parties have lived separately for a period of less than
01-year subject to:
(i)
the court being satisfied that the circumstances envisaged in the proviso to
section 14(1) of the HMA viz., of
exceptional hardship or exceptional depravity, exist; and
(ii)
the court also testing the case on the anvil of the indicative considerations
set-out in Pooja Gupta.
The
contrary view taken in Sankalp Singh, is, to that extent, set-aside.
CONCLUSIONS
1.
The statutory period of 01-year prescribed under section 13B(1) of the HMA as a
pre-requisite for presenting the first motion, can be waived, by
applying the proviso to section 14(1) of the HMA;
2.
The waiver of the 01-year separation period under section 13B(1) of the HMA does
not preclude waiver of the 06-month cooling-off period for filing the
second motion under section 13B(2); and waiver of the 01-year period under
section 13B(1), and the 06-month period
under section 13B(2), are to be considered independently of each other;
3.
Where the court is satisfied that the 01-year period under section 13B(1) and
the 06-month period under section 13B(2) of the HMA deserve to be waived,
the court is not legally mandated to defer the date from which the
divorce decree would take effect, and such decree may be made effective
forthwith;
4.
Such waiver is not to be granted merely for the asking but only upon the court
being satisfied that circumstances of ―exceptional hardship to the
petitioner‖ and/or ―exceptional
depravity on the part of the respondent‖
exist, while also testing the case on the anvil of the considerations set-out
in Pooja Gupta;
5.
Waiver, as above, can be granted both by the Family Court as well as the High
Court; and
6.
As contemplated in the proviso to section 14(1) of the HMA, where a court finds
that the waiver of the 01-year period under section 13B(1) has been obtained by
misrepresentation or concealment, the court may defer the date on which the
divorce would take effect, as may be considered appropriate; or may
dismiss the divorce petition, at whichever stage it is pending, without
prejudice to the right of the parties to present a fresh petition under section
13B(1) of the HMA after expiration of the 01-year period, on the same or
substantially the same facts as may have been pleaded in the petition so
dismissed.
The
law is now settled that in order to prefer a petition for divorce by mutual;
consent, a mandatory separation of one year is no sacrosanct and it can be
waived. As regards the colling period of Six (6) months between the two motions,
in a mutual consent, divorce petition, the same can also be waived off as
already enunciated by the Supreme Court, earlier. Moreover, the separation
period of one year and cooling period of Six(6) months between the two motions
are independent of each other and it thus follows that one year separation period
shall not have to be necessarily completed on the date of granting of second
motion and decree of divorce. The family Courts as well as the High Courts are
empowered to act in a manner as afore stated. It may thus be observed that law
has travelled a distance and it took time to evolve, but now, there is no
ambiguity in this regard and aforesaid dicta of Supreme Court and the discussions
by the full bench in Sakshi Kumari(Supra) has dispelled the ambiguity, if any.
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Anil K
Khaware
Founder & Senior Associate
Societylawandjustice.com
