The statutory period for divorce by mutual consent under Section 13B of the Hindu Marriage Act cannot be waived by invoking Section 14 of the Act.

Aruna Suresh, J.

1. Parties to the petition were married on 17.02.2009. Due to temperamental difference and irretrievable broke down of marriage, parties started living separately since 17.03.2009. Since one year had not elapsed from the date of separation, an application under Section 14 of the Hindu Marriage Act (hereinafter referred to as 'Act') was filed for waiver of one year statutory period for divorce by mutual consent under Section 13B of the Act. The said application was dismissed by the trial court vide impugned order dated 18.11.2009 in view of 'Anil Kumar Jain v. Maya Jain II (2009) DMC 449 SC'.

2. In Anil Kumar Jain's case (supra), the Supreme Court was pleased to hold that it was only the Supreme Court in exercise of its extraordinary powers under Article 142 of the Constitution of India, who could waive the statutory period and pass decree for divorce by mutual consent under Section 13B(2) of the Act. It was further held that neither the Civil Court nor even the High Court can pass an order before the expiry of period prescribed under the relevant provision of the Act or on grounds not provided under Section 13 and 13B of the Act. Therefore, the Supreme Court did not confine itself to the question of waiver of six months period as is required to be observed by the parties after a petition under Section 13B(1) of the Act is filed and allowed, before filing a petition under Section 13B(2) of the Act. It discussed the power of this Court as well as of the Civil Court and its own court to waive the statutory period prescribed under Section 13B or any other relevant provision of the Act or on grounds not provided under Section 13 and 13B of the Act.

3. It is submitted by Ms. Meenakshi Lekhi, learned Counsel for the Petitioners that this is a case where parties cannot reconcile their dispute as marriage is irretrievable broke down and therefore, the Court is within its right to invoke proviso to Section 14 of the Act and permit the parties to file a petition under Section 13B of the Act before expiry of the statutory period of one year. These submissions are devoid of merits.

4. In Smt. Sureshta Devi v. Om Prakash (1991) 2 SCC 25 the Supreme Court defined "living separately" appearing in Section 13B(1) of the Act in the following manner:

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.

5. The Supreme Court further proceeded to analysis the requirement of Section 13B(2) of the Act and also if the court had the power of condone the statutory period of six months to be observed by the parties before filing a petition under Section 13B(2) of the Act. The said judgment has been followed in Anil Kumar Jain's case (supra).

6. In Nand Kishore v. Suman Matrimonial Appeal No. 134/2009 decided by me on 15th December, 2009, while dealing with a similar question, reliance was placed on 'Smt. Sureshta Devi's case (supra)'. I further distinguished the provisions contained in Section 13B(1) and Section 14 of th