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KERALA HIGH COURT
R. Basant and M.C. Hari Rani, JJ.
Krishna Preetha —Petitioner
versus
Jayan Moorkkannatt —Respondent
Mat App. No. 633 of 2008
Decided on 22.2.2010
For the Petitioner:Mr. Shoby K. Francis, Advocate.
For the Respondent:Mr. G. Shreekumar (Chelur), Mr. Subash Chand, Mr. Sandhya Raju, Mr. M.R. Rajesh and Mr. R. Sunil Kumar, Advocates.
IMPORTANT POINT
No Court, except Apex Court can waive statutory waiting period of 6 months after filing joint petition for divorce under Section 13B of H.M. Act. Section 10 of Divorce Act and Section 28 of Special Marriage, either suo-motu or on joint application filed by parties.
Headnote:Hindu Marriage Act, 1955— Section 13B—Indian Divorce Act, 1869— Section 10A—Special Marriage Act, 1954— Section 28—Divorce—Joint petition for—Waiving of waiting period after filing of Joint petition for divorce—Held, No Court can waive statutory period except Apex Court which under Article 142 of Constitution can act even beyond ordinary law in order to achieve complete justice in peculiar fact of a given case—Apex Court only can waive waiting period of 6 months either suo-motu or on application filed by both parties. (Paras 13, 14 and 22)
Key Points: - The statutory waiting period is six months from filing to the second motion, and it is mandatory (!) (!) . - No court except the apex court can waive this waiting period (!) (!) . - The essential conditions are: solemn marriage, mutual agreement, separate living for the specified period, inability to live together, and completion of the minimum six-month waiting period (!) (!) . - The doctrine of irretrievable breakdown is not a ground for dispensing with the waiting period in lower courts (!) (!) . - The Supreme Court alone can act under Article 142 to waive the period, and such relief is not available to High Courts or lower courts (!) (!) . - Withdrawal of consent within the six to eighteen month period terminates the petition, and the court must dispose of the matter accordingly (!) (!) .
What is the mandatory waiting period after filing a joint petition for divorce under Section 13B of the Hindu Marriage Act, and can it be waived by the court?
What are the essential conditions that must coexist before a court can pass a decree for divorce by mutual consent?
What is the scope of appellate courts’ powers to dispense with the statutory waiting period for divorce by mutual consent under Article 142?
R. Basant, J.— Can the waiting period after filing the joint petition for divorce under Section 13B of the Hindu Marriage Act, Section 10A of the Indian Divorce Act and Section 28 of the Special Marriage Act be waived by the court suo motu or on the application of both parties?
2. This question arose for consideration in various petitions and we posted all such cases together for hearing. Sri. G.Shrikumar, Advocate, has rendered assistance as amicus curiae for the court. We have had the advantage of hearing Advocates M/s. S. Subash Chand, Sandhya Raju, M.R.Rajesh, R.Sunil Kumar, Shoby K. Francis and others on the question. We are answering that question in this case.
The finding on that question in this case will be followed in all other cases.
3. Section 13B of the Hindu Marriage Act, Section 10A of the Divorce Act and Section 28 of the Special Marriage Act are all identically worded except in so far as it relates to the stipulation of a larger period of separate residence under Section 10A of the Divorce Act. That distinction is of no consequence in so far as the question to be considered in this case raised above is concerned.
4. The concept of marriage being solemn, sacrosanct and indissoluble is deeply rooted in the Hindu and Christian thoughts and way of life. The concept of divorce was itself accepted and recognized in these systems of personal laws after a long period which witnessed slow evolution of the law. Divorces on the ground of contumacious fault of the spouses and on the ground of absence of unavoidable requirements/ essentials for a healthy married life were recognized by law initially. But the voluntary dissolution of marriage at the option of the spouses was not accepted as a concept for a long period of time in many systems of personal laws. With the progressive development of the society and in its march towards modernism, marriage was looked upon more as asocial institution entered into by the spouses voluntarily as an incident of the right to life and pursuit of happiness. The institution of marriage started to be reckoned and perceived as one of complementarily partnership, friendship, association, love, affection, caring and sharing etc. With that, the concept of marriage as an institution made in heaven over which spouses have no control started waning. With that came the further thought and idea of terminating the relationship of marriage by the spouses voluntarily by mutual consent. Many a battle had to be fought to get the altered concepts accepted by the society. The change/transformation of mind set was not ushered in one fine morning or with ease. At long last we find individuals, community, society at large public opinion and legislators yielding to such a concept of marriage and its dissolution and slowly accepting the idea of divorce by mutual consent. Secular personal was also the different in personal laws were constrained to swim with the times and accept the concept of divorce by mutual consent on joint application of the spouses.
5. We shall extract the provisions of Section 13B of the Hindu Marriage Act, Section 10A of the Divorce Act and Section 28 of the Special Marriage Act for easy reference. They read as follows:
“13. B of the Hindu Marriage Act. Divorce by mutual consent— (l) 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 solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months af
