admin In India marriage is a sacrament. It is a relation between two souls. But due to certain reasons best known to the husband and wife, if marriage tie cannot continued, the legislature thought it better to break down the marriage tie, if it is in the interest of both of them by mutual consent. Under the Hindu Marriage Act,1955 divorce by mutual consent is allowed but statutory period of six months has to be observed. In this case waiver in six months period was required by the parties.
In this case, the appellant wife and the respondent were married as per Hindu rites and ceremonies in 2009. Due to temperamental differences, trouble arose in their marriage and the parties started living separately since February, 2014. Subsequently they filed a mutual divorce petition under section 13-B (1) of the Hindu Marriage Act, 1955 in Saket District Court, Delhi. The Court allowed the first motion on mutually agreed terms but rejected the prayer of the parties for waiver of the statutory period of six months before the second motion could be filed. Therefore, on the question of waiver of the six month period, the matter reached the apex court. The waiver was desired because the respondent husband was to leave India owing to his professional obligations. The tickets for the journey were confirmed and it would not have been possible for him to return within a period of one to two years. This, therefore , would have jeopardized the divorced proceedings by causing the first motion to lapse.
The court noted with approval the proceedings in the court below. The only issue that remained to be answered was as to whether it was a fit case for the court to exercise its power under article 142 of the Constitution of India. The court relied on Vimi Vinod Chopra v. Vinod Gulshan Chopra (2013) 15 SCC 547 wherein it was observed that using the power under article 142 would be a prudent way to end multiple disputes between the parties and ensure complete justice. Further, court also took note of Devinder Singh Narulla v. Meenakshi Nangia (2012) 8 SCC 580, wherein it was observed: We have carefully considered the submissions made on behalf of the parties and have also considered our decision in Anil Kumar Jain case (2009) 10 SCC 415. It is no doubt true that the legislature had in its wisdom stipulated a cooling off 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. After referring to the above cases, the apex court drew two conclusions. First, it opined that irretrievable breakdown of marriage is not a specified ground for divorce under the Hindu Marriage Act, 1955. Nevertheless the apex court may invoke the same in cases before it when it comes to exercise of power under article 142 of the Constitution and thereupon the court can waive the statutory period of six months stipulated in section 13-B of the Act of 1955. But this power of waiver is only available to the Supreme Court and not to any of the courts below. Secondly, this power under article 142 can be used even to convert a proceeding under section 13 of the Hindu Marriage Act, 1955, into proceeding under section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months. However, other courts cannot exercise this power.
