IMPORTANT POINT
Powers under Article 142 cannot be exercised routinely.

JUDGMENT

Altamas Kabir, J.-Leave granted.

2. This appeal arises out of an order passed bythe 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).