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Waiting Period for Mutual Consent Divorce As Per S.13b(2) of The Hindu Marriage Act Can be Waived By Invoking Article 142 : Supreme Court

Team SoOLEGAL 5 May 2023 5:36pm

Waiting Period for Mutual Consent Divorce As Per S.13b(2) of The Hindu Marriage Act Can be Waived By Invoking Article 142 : Supreme Court

New Delhi: According to a ruling by the Supreme Court's Constitution Bench, it can invoke its special powers under Article 142 of the Indian Constitution to dismiss the 6 to 8month waiting period for seeking divorce via mutual consent under Section 13-B of the Hindu Marriage Act 1955.

The 5-judge bench, comprised of Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari, held that, in light of the settlement between the parties, the Supreme Court can exercise power under Article 142(1) of the Constitution and grant a decree of divorce by mutual consent, bypassing the period and procedure prescribed under Section 13-B of the Hindu Marriage Act.

According to Section 13-B of the Hindu Marriage Act, after filing the first motion seeking divorce via mutual consent, the parties must wait for a minimum of six months and a maximum of 18 months before filing the second petition. The law requires this 'cooling off period' to give the parties time to reflect and reconsider their decision.

However, it was discovered that the mandated waiting period was causing difficulties in some cases. In Amardeep Singh v. Harveen Kaur, a two-judge bench of the Court held that the six-month waiting time specified in Section 13B(2) of the HMA is not mandatory and can be waived by the Family Court in extraordinary circumstances.

In several circumstances, the Supreme Court invoked its powers under Article 142 to waive the waiting time. This was done in certain marriage appeals and transfer petitions before the Supreme Court, in which the parties reached a mutual settlement throughout the pendency of the proceedings. In 2015, a three-judge bench referred to the Constitution Bench the question of whether the powers under Article 142 could be invoked to avoid a statutory necessity.

In response to this question, the Constitution Bench ruled that the power granted by Article 142 to do "complete justice" can be invoked to waive the procedural requirement under Section 13B(2). This power, however, is discretionary and should be used with prudence.

The bench reached the following conclusion:

"This Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.”

In response to another problem in the case, the Court ruled that it has the authority under Article 142 of the Constitution to dissolve marriages based on irretrievable breakdown. The bench also stated that a party cannot immediately file a writ petition under Article 32 of the Indian Constitution seeking relief from dissolution of marriage on the grounds of irretrievable breakdown of marriage.



Tagged: Mutual Consent Divorce  
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