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

J U D G M E N T

ADARSH KUMAR GOEL, J.

1.

The question which arises for consideration in this appeal is

whether the minimum period of six months stipulated under

Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a

motion for passing decree of divorce on the basis of mutual

consent is mandatory or can be relaxed in any exceptional

situations.

1

Digitally signed by

SWETA DHYANI

Date: 2017.09.12

16:23:52 IST

Reason:

Signature Not Verified

2.

Factual matrix giving rise to this appeal is that marriage

between the parties took place on 16^th January, 1994 at Delhi.

Two children were born in 1995 and 2003 respectively. Since

2008 the parties are living separately. Disputes between the

parties gave rise to civil and criminal proceedings. Finally, on 28^th

April, 2017 a settlement was arrived at to resolve all the disputes

and seeks divorce by mutual consent. The respondent wife is to

be given permanent alimony of Rs.2.75 crores. Accordingly, HMA

No. 1059 of 2017 was filed before the Family Court (West), Tis

Hazari Court, New Delhi and on 8^th May, 2017 statements of the

parties were recorded. The appellant husband has also handed

over two cheques of Rs.50,00,000/-, which have been duly

honoured, towards part payment of permanent alimony. Custody

of the children is to be with the appellant. They have sought

waiver of the period of six months for the second motion on the

ground that they have been living separately for the last more

than eight years and there is no possibility of their re union. Any

delay will affect the chances of their resettlement. The parties

have moved this Court on the ground that only this Court can

relax the six months period as per decisions of this Court.

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3.

Reliance has been placed inter alia on decision of this Court

in Nikhil Kumar vs. Rupali Kumar¹ wherein the statutory

period of six months was waived by this Court under Article 142

of the Constitution and the marriage was dissolved.

The text of Section 13B is as follows:

“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.

(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 after the said date, if the petition is not withdrawn in

the meantime, the court shall, on being satisfied, after

hearing the parties and after making such inquiry as it

thinks fit, that a marriage has been solemnized and that the

averments in the petition are true, pass a decree of divorce

declaring the marriage to be dissolved with effect from the

date of the decree.”

4.

There is conflict of decisions of this Court on the question

whether exercise of power under Article 142 to waive the

statutory period under Section 13B of the Act was appropriate. In

1

(2016) 13 SCC 383

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Manish Goel versus Rohini Goel², a Bench of two-Judges of

this Court held that jurisdiction of this Court under Article 142

could not be used to waive the statutory period of six months for

filing the second motion under Section 13B, as doing so will be

passing an order in contravention of a statutory provision. It was

observed :

“14. Generally, no