Tajobsindia (Senior Partner ) 25 April 2011

6 months waiting in Mutual Divorce discretionary r Mandatory

6 months waiting in Mutual Consent Divorce discretionary or mandatory - SC

Held: The language of sub-s.(2) of s.13-B is clear and prima facie admits of no departure from the time frame laid down therein, i.e. the second motion under the said sub-section cannot be made earlier than six months after the date of presentation of the petition under sub-s.(1) of s.13-B - However, in view of more than one opinion expressed in the judgments of the Supreme Court on the issue, the matter referred to a three Judge Bench to consider the question: whether the period prescribed in sub-s.(2) of s.13-B can be waived or reduced by Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution - Constitution of India, 1950 - Article 142.

Anjana Kishore vs. Puneet Kishore (2002) 10 SCC 194;
Anil Kumar Jain vs.Maya Jain 2009 (14) SCR 90 = (2009) 10 SCC 415;
Manish Goel vs. Rohini Goel (2010) 2 SCR 414;
Smt. Poonam vs. Sumit Tanwar 2010 (3) SCR 557 =JT 2010 (3) SC 259 and
Prem Chand Garg vs. Excise Commissioner, U.P., Allahabad 1963 Suppl. SCR 885= AIR 1963 SC 996, referred to.

Case Law Reference:

(2010) 2 SCR 414 referred to para 3

2010 (3) SCR 557 referred to para 3

(2002) 10 SCC 194 referred to para 9

2009 (14) SCR 90 referred to para 10

1963 Suppl. SCR 885 referred to para 11

CIVIL ORIGINAL JURISDICTION: Transfer Petition (Civil) No. 899 of 2007.

Satya Mitra, D.N. Pandey, Sanjay Jain for the Petitioner.

Jasmine Damkewala, Sourabh Seth (for Karanjawala & Co.) for the Respondent.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (C) No.899 OF 2007

Neeti Malviya ... Petitioner

VERSUS

Rakesh Malviya ... Respondent

ORDER

This transfer petition has been filed by the petitioner-wife, seeking transfer of the Divorce Petition M.C. No.2168 of 2006 titled as Rakesh Malviya Vs. Neeti Malviya, filed by the respondent-husband, from the court of Additional Principal Judge, Family Court, Bangalore (Karnataka) to the Family Court, Hoshangabad (Madhya Pradesh).

2. After issuance of notice on 7th December 2007, efforts were made on various occasions to bring about a comprehensive settlement of the matrimonial discord between the parties. On 6th September 2008, the parties agreed for mediation. Accordingly, the parties were referred to the Delhi High Court Mediation Centre. Ultimately, in proceedings before the Supreme Court Lok Adalat held on 25th April 2009, it was reported that the parties had arrived at a settlement. The settlement

agreement dated 24th April 2009 was taken on record. The relevant portion of the order passed on 25th April 2009 is extracted below:

"...One of the terms so agreed upon is that the husband is to pay to the wife an amount of Rupees sixty five lakhs on or before 28th February, 2010. It is now agreed before us that the said amount of Rupees sixty five lakhs shall be deposited in this Court as per the schedule of dates mentioned in the agreement.

The amount, so deposited, shall be put in a Fixed Deposit Receipt for a period upto 1st May, 2010.

..... ..... ..... .....

It is also agreed that when full amount in terms of the agreement is deposited, the parties shall, immediately thereafter, move a joint application for grant of divorce by mutual consent. On the passing of the decree for divorce, the amount deposited in this Court shall be released to Neeti without any delay."

3. The matter remained pending for some time but the parties continued to discharge their obligations under the terms of settlement and when the case came up for hearing on 29th January 2010, it was stated that the respondent-husband shall deposit the last instalment of money, in terms of the settlement, by 28th February 2009, which was done. However, when the matter came up for final orders on 10th May 2010, learned counsel for the parties sought time to go through the two judgments of this Court in Manish Goel Vs. Rohini Goel 2010 (2) SCALE 332 and Smt. Poonam Vs. Sumit Tanwar JT 2010 (3) SC 259, and assist the Court on the question whether the period of second motion in terms of sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 (for short "the Act") can be waived or reduced by this Court.

4. We have heard learned counsel for both the parties.

5. Sub-section (1) of Section 13-B of the Act is the enabling Section for presenting a petition for dissolution of marriage by a decree of divorce by mutual consent, on the ground that the parties 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. Sub-section (2) of Section 13-B of the Act

provides the procedural steps that are required to be taken once the petition for divorce by mutual consent has been filed and six months have expired from the date of presentation of the petition before the Court. The language of sub-section (2) is unambiguous and provides that 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, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

6. As already stated, the language of the said provision is clear and prima facie admits of no departure from the time frame laid down therein, i.e. the second motion under the said sub-section cannot be made earlier than six months after the date of presentation of the petition under sub-section (1) of Section 13-B of the Act.

7. The question with which we are concerned in the present petition is whether in view of the settlement arrived at between the parties, a decree of divorce by mutual consent can be granted by this Court without waiting for the statutory period of six months in terms of Section 13-B(2) of the Act. In other words, the question for

consideration is whether or not this Court can reduce or waive of the statutory period of six months, as stipulated in the said provision?

8. At the outset, we may note that in several cases this Court has been invoking its extraordinary powers under Article 142 of the Constitution of India and passing a decree of divorce by mutual consent without waiting for the statutory period of six months to expire. As a matter of fact, even the family courts in some States, following the ratio of the decisions or the directions by their respective High Courts, have been reducing the period of second motion when they were convinced that there was no possibility whatsoever of the spouses coming back together again and granting decree of divorce by mutual consent in terms of the settlement arrived at between the parties in order to give quietus to all the litigations pending between them.

9. In fact, in Anjana Kishore Vs. Puneet Kishore (2002) 10 SCC 194, a Bench of three Judges of this Court, while hearing a transfer petition, invoked its jurisdiction under Article 142 of the Constitution and directed the parties to file a joint petition before the family court under Section 13-B of the Act, for grant of decree of divorce by mutual consent, along with a copy of the terms of compromise arrived at between the parties. The Court further permitted the family court to consider dispensing with the need of waiting for expiry of a period of six months as required by sub-section (2) of Section 13-B of the Act and pass final orders on the petition within such time as it deems fit.

10. The issue with regard to the jurisdiction of the High Court and the matrimonial court to reduce or waive of the period of second motion in terms of sub-section (2) of Section 13-B of the Act fell for consideration of this Court in Anil Kumar Jain Vs. Maya Jain (2009) 10 SCC 415, though in a different context. Taking note of a number of earlier cases where decree of divorce by mutual consent had been granted by this Court without waiting for the expiry of statutory period of six months, it was held that neither the civil courts nor even the High Courts can pass orders before the period prescribed in Section 13-B(2) of the Act has expired. The Court opined that it is only this Court, in exercise of its extraordinary powers under Article 142 of the Constitution, that can grant relief to the parties without even waiting for statutory period of six months stipulated in Section 13-B of the Act.

11. However, recently in Manish Goel (supra) and Smt. Poonam (supra), this Court while taking note of the decisions in Anjana Kishore (supra) and Anil Kumar Jain (supra) has also referred to various other judgments of this Court taking a contrary view and has observed that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of the statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in a statute. The Court has also observed that power under Article 142 of the Constitution is not to be exercised in a case where there is no basis in law which can form an edifice for building up a structure. Reference has also been made to the decision of the Constitution Bench in Prem Chand Garg Vs. Excise Commissioner, U.P., Allahabad AIR 1963 SC 996, wherein it was held that an order which this Court can make in order to do complete justice between the parties, cannot be inconsistent with the substantive provisions of the relevant statutory laws. Inter alia, observing that no court has competence either to issue a direction contrary to law or to direct an authority to act in contravention of the statutory provisions, the Court finally summarised the law on the issue before us to the effect that in exercise of power under Article 142 of the Constitution, this Court`generally' does not pass an order either in contravention of or ignoring the statutory provisions or exercise power merely on sympathetic grounds.

12. Although it can be gathered from the use of the word `generally' in para 15 and the last paragraph of the judgment where the Court did not find the case before it to be a fit case for exercise of its extra-ordinary jurisdiction under Article 142 of the Constitution, that both the said decisions do not altogether rule out the exercise of extraordinary jurisdiction by this Court under Article 142 of the Constitution, yet we feel that in the light of certain observations in the said decisions, particularly in Manish Goel (supra), coupled with the fact that the decision in Anjana Kishore (supra) was rendered by a Bench of three learned Judges of this Court, it would be appropriate to refer the matter to a Bench of three Judges in order to have a clear ruling on the issue for future guidance.

13. Accordingly, we refer the following question for the consideration of a Bench of three Hon'ble Judges:-

(I) Whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its jurisdiction under Article 142 of the Constitution?

14. We direct the Registry to place the papers of this case before the Hon'ble Chief Justice of India for appropriate orders.

15. It is agreed between the parties that in the meanwhile, they will file a joint petition under Section 13-B of the Act for grant of divorce by mutual consent in terms of the settlement within two weeks from today. We are informed that the fixed deposit for the amount deposited by the respondent in terms of the settlement will be maturing for payment in the first week of August, 2010. As and when the said fixed deposit matures, a sum of Rupees two lacs and fifty thousand shall be paid to the petitioner by means of a bank draft payable at Itarsi (Madhya Pradesh). The balance amount along with interest accrued thereon shall be put in a fresh fixed deposit for a period of six months.

16. List in the month of November, 2010.

.......................................J.

[D.K. JAIN]

......................................J.

[C.K. PRASAD]

NEW DELHI,

MAY 12, 2010.

Reply Follow

8 Replies

Tajobsindia (Senior Partner ) 25 April 2011

Here is recent COUNT of various HC's on above conflicting que. of Law :-)
[I found UTK HC quite forward]

1. UTK HC already waived 6 months waiting period when above Ruling is under 'due process' in Smt. Mamta Bhatt Vs. Atul Bhatt on 01-04-2011

2. Mumbai HC did it on 18-03-2010 {name of parties I will update tomorrow}

3. P & H HC did it too. {date and name of parties I will update tomorrow}

2 Like

Jamai Of Law (propra) 25 April 2011

Good one.

Tajobsindia (Senior Partner ) 25 April 2011

Originally posted by :Tajobsindia
"	Here is recent COUNT of various HC's on above conflicting que. of Law :-) [I found UTK HC quite forward] 1. UTK HC already waived 6 months waiting period when above Ruling is under 'due process' in Smt. Mamta Bhatt Vs. Atul Bhatt in First Appeal No. 21 of 2011 on 01-04-2011 2. Mumbai HC did it on 23-02-2010 {Rakesh Harsukhbhai Parekh Vs. 1. STATE, 2. Niti R. Parekh in Writ Pet. No. 1381 of 2010} interestingly this same Lordship didnot pass such waiving Order in similar facts just 6 months ago before this re. 3. P & H HC did it too on 04-02-2010 {Parmodh Kumar Vs. Meena Civil Revision No. 7432 of 2009}	"

Tajobsindia (Senior Partner ) 20 September 2011

Take:

Gujrat Family court passes divorce on the ground of “irretrievable break down of marriage” which is not a ground under HMA and only SC has such power under Article 142

=========================================

SA/185/2011 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SECOND APPEAL No. 185 of 2011

=========================================

BINABEN W/O KULINBHAI SHAH D/O SUNDERLAL SHAH - Appellant(s)

Versus

KULINKUMAR CHANDRAVADAN SHAH - Defendant(s)

=========================================
Appearance :
HL PATEL ADVOCATES for Appellant(s) : 1,
None for Defendant(s) : 1,
=========================================

CORAM :

HONOURABLE MS.JUSTICE HARSHA DEVANI

Date : 07/09/2011

ORAL ORDER

Mr. Harshil Shukla learned advocate for the appellant has invited attention to the impugned judgments and decrees passed by the lower appellate court as well as by the trial court to submit that the courts below have granted the decree of divorce on the ground of irretrievable break down of marriage. It was submitted that under the provision of section 13 of Hindu Marriage Act, 1955, irretrievable break down of marriage is not a ground for dissolution of marriage by a decree of divorce. It was submitted that before the lower appellate court, the learned advocate has specifically pointed out that the trial court has no power to pass a decree for dissolution of marriage on the ground of irretrievable break down of marriage and that of the Supreme Court in the decision on which reliance had been placed upon, had granted decree of divorce in exercise of powers under Article 142 of the Constitution of India. It was submitted that in the circumstances, the present appeal does give rise to a substantial question of law and deserves to be admitted.
Having regard to the submissions advanced by the learned advocate for the appellant, it, prima-facie, appears that both the courts below have granted divorce solely on the ground of irretrievable break down of marriage. In the circumstances, the matter requires consideration. Hence, ADMIT. The following substantial question of law arises for determination.

Whether the lower appellate court was justified in holding that decree of divorce under section 13 of the Hindu Marriage Act, 1955 could be granted on the ground of irretrievable break down of marriage?

(HARSHA DEVANI, J.)

(ashish)

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 20 September 2011

Dear Tajob,

I read it once in a law book, "It is not contempt of court to say, the judge doesnot know the law." It is responsibility of the lawyers to tell law to the judge. (A Queens Bench Judgement).

I want to interestingly note whether these HC benches has quoted the SC Judgement which states it is sole descrition of SC to waive 6 months period under 13-B.

Also, regarding irretrievable breakdown of marriage, A recent Kolkatta DB judgement in Piyasa Ghosh Vs Somnath Ghosh I (2011) DMC789 refused such plea and noted - Only SC empowered to grant divorce on grounds of Irretrievable ground of marriage.

Interested read though all these judgements.

Thanks and Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

Tajobsindia (Senior Partner ) 20 September 2011

And here is a cold storage status of most watched three Judge reference matter on 6 months waiting period being discretionary or mandatory !

Now any takers to raise same issue before Hon'ble SC for "clarification"?

ITEM NO. 1                  COURT NO.5             SECTION XVIA

              S U P R E M E    C O U R T   O F    I N D I A

                            RECORD OF PROCEEDINGS

I.A. Nos. 11, 12 & 13 IN

TRANSFER PETITION (CIVIL.) NO(s). 899 OF 2007

NEETI MALVIYA                                        Petitioner(s)

                   VERSUS

RAKESH MALVIYA                                       Respondent(s)

(For permission for withdrawal of amount and for directions)

Date: 23/08/2011    This Petition was called on for hearing today.

CORAM :

          HON'BLE MR. JUSTICE D.K. JAIN

          HON'BLE MR. JUSTICE ASOK KUMAR GANGULY

For Petitioner(s)    Mr. Satya Mitra, Adv.

                     Mr. D.N. Pandey,Adv.

For Respondent(s)    Ms.   Jasmine Damkewala, Adv.

                     Mr.   Saurav Seth, Adv.

                     Mr.   Amitesh Mishra, Adv.

                     Mrs   Manik Karanjawala,Adv.

                     for   M/s Karanjawala & Co., Advs.

             UPON hearing counsel the Court made the following

                                 O R D E R

          I.A. Nos. 11,12, & 13 are disposed of in terms of

          the signed order. All other pending I.A.s. are

          rendered infructuous and are disposed of.

              [ Charanjeet Kaur ]              [ Kusum Gulati ]

                 Court Master                   Court Master

           [Signed order is placed on the file ]

 -------------------------------------------------------------------

      IN THE SUPREME COURT OF INDIA

       CIVIL ORIGINAL JURISDICTION

     I.A. Nos. 11, 12 & 13 of   2011 IN

TRANSFER PETITION (CIVIL) NO. 899 of 2007

Neeti Malviya                                    ..     Petitioner(s)


                             Versus

Rakesh Malviya                                   ..     Respondent(s)

                              O R D E R

       These applications have been filed by the parties

respectively for release of the amount agreed to be paid

by the husband to the wife and for quashing of Case No.

751 of 2008 arising out of FIR No. 115 of 2008.

     It is stated that during the pendency of the main

matter, marriage between the parties has since    

been dissolved by virtue of decree dated 19th July, 2011 by the

Principal Judge, Family Court, Bangalore in M.C. No. 1475

of 2010. In the light of the said development, we are of

view that in the main matter nothing survives for our

consideration. As a matter of fact even the reference

made by this Court to a larger Bench vide order dated 12th

May, 2010 (since reported as 2010 (6) SCC 413, Neeti Malviya vs. Rakesh 

Malviya) is also rendered infructuous insofar as the present case is 

concerned.

     Accordingly, we dispose of the main transfer petition in terms 

of the decree passed by the Family Court. We further direct that in 

view of the settlement between the parties all pending cases, including 

Case No. 751 of 2008, pending in the Court of J.M.F.C. Itarsi,

Hoshangabad, shall stand quashed. The applications stand disposed of 

accordingly.

     It is pointed out that out of Rs.65 lacs deposited by the 

respondent in this Court, an amount of Rs.2.5 lacs has already been 

released to the petitioner by means of abank draft payable at Itarsi 

vide order dated 12th May, 2010. The balance amount of Rs.62.5 lacs is 

stated to be lying in a fixed deposit receipt, which is maturing in the

month of February, 2012. Let all the F.D.Rs. in the total sum of Rs. 

62.5 lacs be got encashed prematurely and the said amount along with 

interest accrued thereon be remitted to the Principal Judge, Family 

Court, Bangalore, in M.C. No. 1475 of 2010, for being disbursed in 

terms of the settlement, after due notice to the parties.

      All other pending I.A.s are rendered infructuous and are 

disposed of accordingly.

                                         ........................

                                          [ D.K. JAIN, J. ]

                                         ..........................

                                          [ ASOK KUMAR GANGULY,J. ]

NEW DELHI,

AUGUST 23, 2011

Tajobsindia (Senior Partner ) 20 September 2011

@ Shonne "An articled student-at Law if sees that a Judge makes a legal error then his/her decision can be appealed to a higher court. If a Judge does commit a legal error, and HE suspect that he/she was influenced, while making the decision, by something other than the evidence and facts presented and the law, HE feel there are avenues available to HIM, to submit not only a complaint but exercise option to appeal and set the Rule of Law applied to facts and evidence to case in hand." The above was also mentioned in one of the Orders by Court of Queen's D. Bench (particularly under Canadian jurisprudence)

MK Gupta (prop) 17 July 2012

Can anybody please give any refference of west bengal high court where the court waived the 6 month period in any mutual divorce case.please send the judgement to mkaysmail@yahoo.com.thanks....