Amardeep Singh vs Harveen Kaur on 12 September, 2017

Supreme Court - Daily Orders

Amardeep Singh vs Harveen Kaur on 12 September, 2017

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11158 OF 2017

(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)

Amardeep Singh Appellant

Versus

Harveen Kaur Respondent

JUDGEMENT

Facts:

 On 16.01.1994, the Appellant (Amardeep Singh) got married to the Respondent (Harveen
Kaur). Out of their wedlock, two children were born in 1995 and 2003 respectively. Some
disputes arose between them, and since 2008 the couple started living separately.
 On 28 .04.2017, finally, a settlement was made, and the parties decided to seek divorce by
mutual consent since no hope to reconcile was left. The wife was awarded Permanent
alimony of the amount of Rs 2.75 crore by the appellant.
 Two cheques amount of Rs. 50,00,000 each was duly honored in favor of the wife by the
appellant. The custody of the children was with the appellant.
 On 8.05.2017, the Appellant filed a petition before the Family Court of Tis Hazari Court, New
Delhi seeking the court to grant a divorce decree on the ground of mutual consent. Further,
the statements made by both parties were recorded.
 Subsequently, both the parties to the case pleaded for the waiver of six months for the
second motion on the ground that they have been living separately for more than eight years
and there is no hope for their reconciliation.
 In this petition filed before the Hon’ble Supreme Court, the parties pleaded that the
statutory period of six months prescribed for the second motion should be relaxed given the
previous decisions made by the apex Court in the concerned matter.

Issues Involved:

 Whether the exercise of Article 142 of the Indian Constitution to waive the minimum
waiting period of six months under Section 13B(2) mandatory or directory?
 Whether the exercise of power under Article 142 of the Constitution to waive the statutory
period under Section 13B(2) of the Hindu Marriage Act, 1955 appropriate?

Contention of Petitioner/Appellant:

 It was contended that the court should apply the power provided under Article 142 to relax
six months prescribed under Section 13B (2) of the Hindu Marriage Act.
 Moreover, there was no chance of any reconciliation between the parties. Using the power
under Article 142 will save the parties from further agony.
 It was contended that the court in the suit of Nikhil Kumar Vs Rupali Kumar has previously
waived the statutory period of six months exercising power under Article 142 of the
Constitution.

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  Also, in the case, Anjana Kishore Vs Puneet Kishore, the court dealing with the matter of
transfer petition waived six months under Article 142, the parties came to a settlement.
 The Learned amicus also submitted (appointed by the court in this matter) that the period
prescribed under Section 13B (2) of the Act is a directory and can be relinquished by the
court in exceptional situations. Section 13B(2) is merely procedural.
 It was contended by the amicus that if the parties are living separately for a period of more
than a year and there is no chance of resuming cohabitation then the discretion to waive the
period can be considered in the interest of justice by the court.

Contention of Respondent:

 The Respondent contended that the court should apply the power provided under Article
142 to relax six months prescribed under Section 13B (2) of the Hindu Marriage Act.
 The parties were living separately for the last eight years, and there lies no chance for
reconciliation between them. So, the interim period should be set aside.
 The power provided to the court under Article 142 to waive the statutory period is directive
in nature.
 Hence the honorable court, in this instant plea should waive the statutory waiting period to
avoid further agony of the parties caused by unnecessary delay in reaching the settlement.

Judgement:

 It was observed by the court that the parties had been living separately for more than one
year and there lies no scope for the parties to get back together.
 As such the minimum statutory period of six months provided under Section 13B(2) of the
Hindu Marriage Act is creating problems for the parties to start their life afresh.
 In this regard, the Hon’ble Supreme Court held that in deciding whether the provision under
Section 13B(2) is mandatory or directory, the following points must be considered:
 That the period of six months provided under Section 13B (2) in addition to the period of one
year is completed before filing the first motion.
 Option of Mediation /conciliation including the option to settle in terms of provision of Order
XXXIIA Rule 3, Code of Civil Procedure, and Section 9 of Family Court have been used and
there is no chance of further effort.
 Parties to the marriage have settled the matters of alimony, custody of children, or any other
issues.
 The waiting period will cause hindrance for further settlement.
 The application for a waiver is to be filed one week after the first motion specifying the
reasons for the waiver.
 It was held by the court that on the fulfillment of the above-stated conditions, the waiting
period for the second motion can be waived at the discretion of the court. Hence, the period
prescribed for waiting under Section 13B(2) is not mandatory but a directory.
 Also, the parties can move the court for fresh consideration after the order.

The appeal thus stands disposed of.

Conclusion:

To conclude, it can be said that the provision of Section 13B(2) of the Hindu
Marriage Act is directive. The exercise of power under Article 142 of the
Constitution to waive off the minimum waiting period to seek divorce on the ground
of mutual consent depends on the discretion of the court provided there is no
possibility of parties resuming rehabilitation.