Introduction
According to Hindu law, marriage is not a sacrament or a contract, but both, partly contract and partly a sacrament. Before Independence, divorce was unknown in the Hindu religion. Marriage in Hindu religion has always been considered as a sacred ritual, the ties of which cannot be broken in this world or the next. Although the concept of remarriage of widows was legalized in 1856 by Lord Dalhousie, divorce was still illegal in the Hindu law until 1955, when the Hindu marriage act was drafted. The divorce as a means of separation was common in some lower strata of the society before independence, and this practice played a prominent part in the inclusion of divorce while drafting the Hindu Marriage Act, 1955.[i]
The society did not allow divorce pre-independence because it creates social predicament. So, the provision of Judicial separation[ii] was given prominence. It provided the couples with a cooling period to allow them to settle their disputes and try to mitigate their differences.[iii] Divorce through mutual consent was not provided for in the original Hindu marriage Act and was later added through the 1976 amendment. It was only under Muslim law where divorce by mutual consent was allowed (Khula, Mubara'at Khula, and Tala-i-tafweez)[iv] until then.
Section 13-B of the Hindu Marriage Act provides for the divorce by mutual consent. According to Section 13-B, for a divorce by mutual consent, both the husband and wife are required to file a joint petition that they have been living separately for more than 1 year and do not intend to live together and thus have mutually agreed for the dissolution of marriage.[v] The word “living separately” has been described by Supreme Court in the case of Sureshta Devi v. Om Prakash as –
The expression denotes not living like a husband and wife. They might be living under the same roof due to unavoidable circumstances but not as husband and wife. What is necessary is that the husband and wife have no desire to perform any marital obligations they owe towards each other.[vi]
Section 13-B lays down the procedure for divorce by mutual consent, and sub-section (2) provides that once both the parties mutually file a petition for divorce, they cannot move the second motion before 6 months or after 18 months from the date of the original petition. The 6 months cooling period is given so that the couple, if possible, can settle their differences and avoid taking any rash decision in the heat of the moment.[vii]
But in some cases, the marriage is broken down to such an extent that it is impossible to come to terms again for both husband and wife. In such circumstances, can the waiver period of 6 months be waived off? In this project, we will talk about whether SC can use its power under article 142 to waive the 6 months period mentioned in sub-section (2) of section 13(B) of the Hindu Marriage Act.
Neeti Malviya v Rakesh Malaiya[viii]- Relevant Facts and brief.
The transfer petition was filed by the appellant-wife, seeking for the transfer of the divorce petition from Family Court, Bangalore to Family Court, Hoshangabad. After the notice was issued in 2007, efforts were made to come to terms by both husband and wife and finally decided to settle the dispute through mediation in 2008. In 2009, the parties arrived at a settlement, whereby the husband had to pay a hefty amount of 65 lakhs by 28 February 2010. The said amount was to be deposited in a fixed account till 1st May 2010. As per the settlement, after the amount has been deposited by her husband, both the parties would file a petition for divorce by mutual consent and the amount will be given to Mrs. Neeti as soon as the decree is passed.
When the matter came up before the court, the counsel went through the judgments of Manish Goel v. Rohini Goel[ix] and Poonam v. Sumit Tanwar[x] to assist the court on the question of whether the court can waive off the 6 months cooling period under sub-section (2) of Section 13-B. According to the sub-section (2), the second motion cannot be made before 6 months period from the date of presentation of the petition. Therefore the question in the case is whether the court can reduce/waive off the 6 month time period under Section 13-B(2)?
In the case of Anjana Kishore v. Puneet Kishore[xi], the 3 judge bench of SC invoked its jurisdiction under article 142 to waive 6 months statutory period. The judge also held that the family courts and HC might consider dispensing with the need to waive 6 months time period and pass the final orders as it deems fit.
Although in a number of cases, the statutory period of 6 months has been waived, the SC in present case held that family courts and HC do not have the jurisdiction to pass orders before 6 months. This power lies only with the SC. It is only SC which can invoke its extraordinary powers under Article 142, to waive the statutory period of 6 months. The court also held that it cannot ignore the statutory provisions and pass orders contrary to the mechanism provided in the statute and thus the cooling period cannot be waived merely on the basis of emotional grounds.
The Court did not find this case to be fit for invoking its extraordinary power under Article 142 of the Constitution. But considering the judgment of Anjana Kishore[xii] given by a 3 judge bench, the court found it appropriate to refer the case to a 3 judge bench of the SC.
Analysis
The main issue in the case of Neeti Malviya[xiii] was – Does the court have the discretionary power to waive the 6-month statutory period and give an instant decree for divorce envisaged under Section 13-B(2) of the Hindu Marriage Act? The judges, in this case, hesitated to waive the 6 month time period and give an instant decree for divorce. But, as the 3-judge bench of the apex court had already decided on the issue in case of Anjana Kishore[xiv], the learned judges decided to refer the case to a 3-judge bench.
In the case of Anjana Kishore[xv], the couple filed a joint petition for divorce by mutual consent, along with the copy of compromise arrived at between the parties. The SC by invoking its powers under Article 142 held that-
An application should be filed by the couple for curtailment of the time in the Family Court, and the Family Court may dispense with the need to wait for 6 months, as required under section 13-B(2) of the Hindu Marriage Act and pass the decree as it deems fit.
The SC in the case of Neeti Malviya,[xvi] adopted a strategy to refer the case to a larger bench. The purpose of such reference was to seek clarification whether the exercise of its powers under Article 142 of the Constitution was justified where there is a clear statutory provision that second motion cannot be moved before 6 months from the date of presentation of the motion in divorce by mutual consent.[xvii]
Judicial Legislation Under Article 142 of Constitution.
Article 142 of the Indian Constitution states that the SC may pass orders to do complete justice, and such orders will be binding all over the country in a manner prescribed by the Parliament or until the provision on that behalf is made. The decree made under Article 142 is distinct in itself and is exercised on the prime consideration of justice, equity, and good faith. In jurisprudential terms, it is known as "residuary source of law".[xviii] One needs to call this “judicial Legislation” because it gives the court powers to take steps that need to be taken in order to do complete justice. In its own demarcated domain, the SC enjoys plenary powers, which is absolute and unqualified. This exercise of power by SC under Article 142 cannot be curtailed by any statutory provision by the legislature. This is a discretionary power. But the directions given by SC cannot be in contravention to the provisions of the statute.[xix]
Recently the SC used its discretionary power in the case of Devinder Singh Narula v. Meenakshi Nagia[xx] to waive the 6-month statutory period granting a decree of divorce under Section 13-B(2) of the Hindu Marriage Act. The decision gave rise to the following issues and questions of constitutional and legal significance-
1. Whether the SC through its powers under Article 142 of the Constitution can negate or nullify the statutory provision of 6 months waiting period under section 13-B(2) of HMA, 1955.
2. Can the 6-month waiver given by SC be treated as a law under Article 141 of the Constitution, and will it be enforceable throughout the country?[xxi]
The first issue is judicially disputable as various judgments have been passed regarding the same, the first variant being the 3-bench judgment of the Supreme Court in the case of Anjana Kishore.[xxii]But the case did not have a fact matrix to prompt the court to invoke its powers under Article 142, nor did there was an irretrievable breakdown of the marriage to necessitate the immediate divorce. So, we may consider the case as of not much precedent value and call it a closed case.
The second variant is the case of Priyanka Singh.[xxiii] The case was filed on the grounds of irretrievable breakdown of the marriage. Here the SC waived the 6-month statutory period, but there was no mention of sub-section (2) or any reliance on the case of Anjana Kishore.[xxiv]
In the third variant case of Manish Goel[xxv] and Smt. Poonam[xxvi] the court decided not to use its powers under article 142 and directed to follow the procedure laid down under section 13-B(2) of HMA. The SC held that the judiciary was meant to enforce the law and not give decisions in contravention to the law.
The fourth variant is the case of Neeti Malviya,[xxvii] where the court refused to use its powers under Article 142. But instead of directing the parties to follow the procedure laid down, it referred the case to a larger bench keeping in mind the judgment given by a 3-judge bench in Anjana Kishore.
Thus the different approaches are taken, and varying decisions by the SC have made it prima facie uncertain and ambiguous and thus affecting the whole process of the rule of law.
On the second issue, the SC held that it was no doubt that the cooling period was enacted by the legislation to help the parties mitigate their differences and to minimize the divorces in the country, but sometimes marriage breaks down irretrievably and the court needs to interfere, as it would be unjust to make the parties wait when there is no scope for reconcilement. In the case of Kiran v. Sharad Dutt,[xxviii]the marriage broke down completely within 3-months of the marriage. The SC on affirming that the marriage cannot be solemnized on any grounds and considering it to be futile to wait for 6-months waived the cooling period, and granted a decree for divorce. The power under article 142 should be invoked only if it is to do complete justice and not just on sympathetic grounds; otherwise, it is bound to create confusion. The judicial legislation is transitory in nature and survives only until a provision is made by the Legislature. The legislature may make minor adjustments in Section 13-B(2) of the HMA to waive off 6-months cooling period in cases of irretrievable breakdown of marriage in order to do complete justice.
Critique cum lessons
Till the time position of law is clarified by the larger bench of the SC, what can we derive from various judgments of the SC? We can keep a few things in mind from what we have learned till now, and it might serve as a critique as well as a lesson.
1. The extraordinary power under Article 142 of the constitution to waive off the cooling period is exclusive to SC only. No HC or family court have such power to waive off the cooling period.[xxix]
2. The power exercised by the SC under Article 142 is limited in itself. It cannot be violative of the statutory provisions. The same has been expounded by the constitutional bench of the SC in the case of Prem Chand Garg.[xxx]
3. The cases of waiver must be distinguished from the cases where the SC granted a decree for divorce on the grounds of irretrievable breakdown of marriage while exercising its powers under Article 142 of the constitution.[xxxi]
4. The power of SC under Article 142 is exceptional and must be exercised only in cases where it is necessary to provide complete justice to the parties or where the injustice done to the parties must be undone. And in the absence of such circumstances, the court is not bound to invoke its jurisdiction under Article 142 of the Constitution.[xxxii]
Conclusion
Article 142 of the Indian Constitution gives SC the powers to SC to interpret the statutes and pass a decree in order to do complete justice in a given case. Such orders shall be enforceable until the legislature passes legislation to give effect to the same.[xxxiii] Article 136 gives SC the power to grant special leave, i.e., a party can directly appeal in the SC against any judgment.[xxxiv] Both these articles are necessary for SC to exercise its powers to undo the injustice done or to do complete justice.
As Hindu marriage is considered sacred, the legislature attempted to minimize the number of divorce cases in the country by adding sub-section (2), providing a 6-months cooling period, so that the couple can re-think their decision and try to mitigate their differences. This approach of Legislature has been successful in many cases. Still, on the contrary, where the marriage has broken down completely, and there is no scope for the couple to solemnize and mitigate their differences, it would be an injustice to them to make them wait for 6-months to obtain a decree for divorce. It would likely strain the relations further. In such cases, the court is right to waive the 6-month statutory period and give an instant decree for divorce. But although similar decisions have been given on the ground of irretrievable breakdown of the marriage, the SC gave few decisions recklessly especially in cases where there was no cruelty done to a partner, or where there was no substantial question of law involved (as discussed above).
In other instances, the apex court has also given decisions to the contrary, where it held that statutory provisions could not be tinkered with unless there is a substantial question of law involved. The Court guided that the parties ought to follow the procedure laid down in section 13-B(2) of the HMA, and it is only after 6-months that they can go ahead with the second motion to obtain a decree for divorce with mutual consent. It is not judiciary who can decide which legislation is relevant and which is not. It is the work of the legislature to decide.
In the recent case of Amardeep Singh v. Harveen Kaur,[xxxv]the SC held that Section 13-B(2) of HMA is directory and not mandatory. As it is not mandatory, the SC need not invoke its powers under Article 142 to waive off the cooling period. Also, it established 4 grounds which on being satisfied, the cooling period can be waived.
The question whether SC has the right to waive the cooling period is still not settled, and it creates confusion regarding the question of law. It is still a matter of discretion in the hands of SC as the Parliament has come up with no provision to settle the dispute. Although waiving the statutory period is against the provisions of law, the SC should have the right to determine whether to waive it or not in order to do complete justice. It is agreed that the law is enacted after thorough debate and legislation, but there is still some drawback to it, and a party should not suffer due to such drawbacks. However, the SC should come up with proper guidelines on how this discretionary power should be utilized, as it would again be unfair to grant decrees on sympathetic grounds.
The lacuna in the law still exists, and the problem must be decided by a larger bench as soon as possible. It would give consistency in the judgment and remove discrepancies in the law.
* Authored by Sushil Joon, 2nd year B.A.LL.B. student at WBNUJS.
References
[i] Ashutosh Mookerjee, Marriage Separation, and Divorce 142 (2005).
[ii] The Hindu Marriage Act, 1955, §10.
[iii] Mookerjee, Supra.
[iv] Id., 172.
[v] The Hindu Marriage Act, 1955, §13B.
[vi] Sureshta Devi v. Om Praksah, AIR 1992 SC 1904.
[vii] Kusum, Divorce by Mutual consent, 29 JILI (1987).
[viii] Neeti Malvaiya v. Rakesh Malvaiya, (2010) 6 SCC 413.
[ix] Manish Goel v. Rohini Goel, AIR 2010 SC 1099.
[x] Poonam v. Sumit Tanwar, AIR 2010 SC 1384.
[xi] Anjana Kishore v. Puneet Kishore, (2002) 10 SCC 194.
[xii] Id.
[xiii] Supra note 8.
[xiv] Supra note 11.
[xv] Id.
[xvi] Supra note 8.
[xvii] Virendra Kumar, Varying Judicial Responses to Dissolution of Marriage by Mutual Consent under Hindu Marriage Act, 1955: A crisis of Constitutional Culture, 52 JILI (2010).
[xviii] Virendra Kumar, Judicial Legislation under Article 142 of the Constitution: A pragmatic prompt for proper legislation by the Parliament, 54 JILI(2012).
[xix] Kusum, Irretrievable breakdown of Marriage: A ground for Divorce, 20 JILI (1978).
[xx] Devinder Singh Narula v. Meenakshi Nagia, (2012) 8 SCC 5800.
[xxi] Supra note 18.
[xxii] Supra note 11.
[xxiii] Priyanka Singh v. Jayant Singh, (2020) 15 SCC 390.
[xxiv] Supra note 11.
[xxv] Supra note 9.
[xxvi] Supra note 10.
[xxvii] Supra note 8.
[xxviii] Kiran v. Sharad Dutt, (2000)10 SCC 243.
[xxix] Kumar Jain v. Maya Jain, (2009) 10 SCC 415.
[xxx] Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
[xxxi] Romesh Chander v. Savitri, AIR 1995 SC 851.
[xxxii] Supra note 9.
[xxxiii] The Constitution of India, 1950, Art. 142.
[xxxiv] Id. Art. 136.
[xxxv] Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.
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