Is 6 months waiting period mandatory !

Other thing i wanna add is the irretrievable breakdown of marriage is not a ground under hindu marriage act. So the parliament should come with the law to include this into the list of grounds of divorce. Untill this the breakdown ground can be used by supreme court only and that is under article 142, Which is wider enough to empower the apex court.

Regarding logic behind the six month is , dr. Arun is right, it is provided to give time to the parties to reconcile, and to think upon the divorce which is still having various evil attached with it. Doing away with it will mean that a family could be broken down with in hours, so the six month period is there.

Dr Arun now about your personal view, its the task of legislature to make laws not the supreme court. The views in the judgement may be personal views, but they r in the shape of binding precedent. If the supreme court would have held otherwise then isn't it have overreached its scope?

Dear Anish, that was indeed a very clever response: Now, not to counter you, as I ahve not sen the Judgement, but  Supreme Court precedents means " Law declared by the Supreme Court" and here Law mens Positive Law like the Austanian, theory of Law: The important statements of  Law in the present Query is: If the Parliament in its wisdom makes certain acts as unlawful: Can the Supreme Court waive such unlawful act? if so what is the use for the Parliament to declare certain acts as unlawful and lawful? If that is permitted, there will be a Clash of the Titans between the parliament and the apex Court? 

Dear Mr. Arun,

I have collected the case from internet but could not read it. Have collected also a report of 'The Hindu' which is as follows:

" The Hindu - Online edition of India's National Newspaper, Thursday, Sep 03, 2009

Divorce can be granted even if consent is withdrawn: court Legal Correspondent No purpose will be served by prolonging the agony of the parties  Doctrine of irretrievable breakdown of marriage is not available to High Courts.  Court has to take total view of ground reality while dealing with adjustment of relationships.

NEW DELHI: The Supreme Court has held that it is empowered to grant divorce by mutual consent under Section 13 B of the Hindu Marriage Act even if the wife or the husband withdraws it during the proceedings in the lower court and prior to the passing of the decree. “Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed. It is only the Supreme Court, in exercise of its extraordinary powers under Article 142 of the Constitution, that can pass orders to do complete justice to the parties,” said a Bench of Justices Altamas Kabir and Cyriac Joseph. The Bench made clear that this doctrine of irretrievable breakdown of marriage was not available to the High Courts, which do not have powers similar to those exercised by the Supreme Court under Article 142. “Neither the civil courts nor even the High Courts can therefore pass orders before the periods prescribed under the relevant provisions of the Hindu Marriage Act or on grounds not provided for in Sections 13 and 13 B of the Act.”  Writing the judgment, Justice Kabir cited Supreme Court judgments and said no purpose would be served by prolonging the agony of the parties to a marriage which had broken down irretrievably, and the curtain had to be rung down at some stage. The Bench said the court had to take a total and broad view of the ground realities while dealing with adjustment of human relationships.  In the present case, Anil Kumar Jain and Maya Jain filed a joint petition for divorce by mutual consent in a trial court in Madhya Pradesh. As the wife withdrew her consent later, the court dismissed the petition. A single judge of the Madhya Pradesh High Court at Jabalpur dismissed the appeal. Allowing the appeal by Anil Kumar Jain against this judgment, the Supreme Court, citing precedents, said it would be a travesty of justice to continue with the marriage if there was no possibility of the spouses coming together again. “The Supreme Court, under Article 142, can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13 B of the Act.”  Fit case to exercise Article 142 In this case, the parties had been living separately for seven years. As part of an agreement, the appellant transferred valuable property rights in favour of Maya, following which she withdrew consent for divorce. This was a fit case where Article 142 could be exercised, the Bench said and held that the marriage stood dissolved from the date of this judgment."

Explain follows.

 

(Contd.)

You wrote: “In this case according to my interpretation the consent was withdrawn early and then SC saw the irretriviable breakdown between couple and used discritionary power of Art. 142 to disolve their irretriviable marriage and further defined S. 13 B on the go.

But, is it correct to say reading quoted citation that SC has said categorically as binding to all Courts sub ordinate to her that 6 months is mandatory? NO is my interpretation.”

Let us examine what Sec 13B of The Hindu Marriage Act says:

“13B. 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, (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 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.”

The above is the bare act, now let us see, what the legal provisions are Working here; the words  ‘by both the parties’  & ‘together’ indicates that both husband and wife, jointly, ie, together have to file the petition on the ‘ground’ that, (i) they have been living separately for a period of one year or more, (ii)that they have not been able to live together and (iii) that they have mutually agreed that the marriage should be dissolved

According to sec 13B (2), the legal provisions are as follows:

On being satisfied, after hearing & inquiry the court, Will pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree; on condition that (i) not earlier than six months (ii) if the petition is not withdrawn in the meantime, & (iii) if averments are true.

The above judgment given under, The Art.142, of The Supreme Court of India.

According to Article 142 (1), The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by  Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

Now please go through the following part of The Hindu.

“The Supreme Court, under Article 142, can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13 B of the Act.”  Fit case to exercise Article 142 In this case, the parties had been living separately for seven years. As part of an agreement, the appellant transferred valuable property rights in favour of Maya, following which she withdrew consent for divorce. This was a fit case where Article 142 could be exercised, the Bench said and held that the marriage stood dissolved from the date of this judgment. (The Hindu)

From this it is cleared that,

(a) the parties had been living separately for seven years;

(b) An agreement was there;

(c) The subject of agreement, was mutual divorce;

(d) The spouses were agreed on the point that, the appellant will transfer valuable property rights in favour of Maya.

(e) The property rights transferred to Maya.

(f) following which (property rights transferred to Maya) after which she withdrew consent for divorce.

The above mentioned matters are nothing but a Trot & breach of contract/agreement. As the Supreme Court bound doing complete justice in any cause or matter pending before it, Under Art.142 of The constitution of India, therefore it is done. Actually Smt.Maya is punished for her Trot & breach of contract/agreement. It is not the bypass/neglect of the provisions of the act.

 

It is true that, the decission of supreme court, binding to all it's subordinate court. It is true for each and every case of same nature also. But as the order done under Art 142, which not available to any court except Supreme Court, therefore no any court, other than Supreme Court, has the capacity to do so. But a chanel now opened that, a lower court (even a district court) can refer such matter to SC seeing it's Public importance.

 

Dear Mr.Arup,

As per my view no doubt no other court has power under Art 142 but every court has provided vide powers under other section and Articles. As the High court has vide powers under Section 482 and even high court can direct its court below under Article 226/227. Therefore it can also waive off the period therefore i m not in the favor of this judgment wherein sole descrition is kept with Supreme court only.

The statements of law under Article 142 of the Constitution of India, vesting extra Ordinary power on the Supreme Court is in the form of Legislation to meet extra Ordinary situations by the Apex Court, when there is a vacum in Law. But here, there is a clear stastements of Law by the Parliament as mandatory prohibitions, so the query boils down to whether Supreme Court can waive the acts which has been clearly enacted by the Parliament as mandatory prohibitions?

Mr. Assumi, (ref dtd 23/1),

No, not. Because, divorce petition is over after decree.  After the death of husband, if the wife was petitioner; she cannot go against the decree (go on appeal), for which she prayed. If she is respondent, she has the right to go on appeal, but against whom she will go. Cause of action vanished due to death of husband. But one thing is there, the appeal can be established, by saying that, ‘the respondent was going for an appeal, and suppose she win she could be the successor of decased, and on that ground she can file a property suit instead divorce petition.

" but no sooner, it shall be lawful for the respective parties to the marriage to marry again....” –

 

Sec 15 of the Hindu marriage act provided thie above provision.

The Constitution of India provides Art 142 to empower SC for doing complete justice in any cause or matter pending before it.

Though both HMA & Constitution enacted by Parliament but Constitution more power full than HMA and any other act. It is the source of all other acts. As the Art 142 more power full than HMA, and SC is duty bound to do complete justice, therefore it is right to use in appropriate places.

It is another question that what will be the sphere of the said art. Reply is within the act ie ‘doing complete justice’

It is another question that a few cases get the blessings of Art. 142, but why not the similar other cases. We could not know those cases, due to the lack of media attention.

 

Thank you all for expressing your thoughts to this thread.

While replying here in particular to Sh. Kamal Grover ji's good advise, I like to share a suggestion to circumvent the main issue which is; instead of going to HC and getting specific directive by use of HER inherent powers as he so kindly expressed there is a way out.
The folloowing suggestion which I received from external source is purely based on "common man's" prespective who can not wait 6 months nor he can not even afford HC cost of litigations.

The sugegstion to circumvent the recent SC directive is to get 6 months cooling period waived off at Trial Court level itself .

How?

What one can do is to first, complete the discussion about the terms and conditions of mutual consent with each other, and simply send a divorce notice with some minor allegations to the other party. Once that party receives summons, ask them to come to court and tell in the court that we both have compromised by mutual consent,  please refer our case to to LOK ADALAT. There it will take only few days to get a divorce decree with all matters thus settled in shortest / quickest possible time.

The above suggestion is probably going to work with new litigent couples who have been scared reading SC directives and want a quickest way out to their miseries. Any comments on this circumventing suggestion are welcome.

Howver the main issue could still go on with welcomign suggestions by legal experts for clarity as requested.

As far as my reading of recent judgement of the Supreme Court goes, Supreme Court was addressing a very different issue in ANIL KUMAR's case. While passing the judgement, reference to six months can only be called as obitter dicta. Supreme Court exercised power under article 142 of the Constitution of India.

For one of my client, I have approached the High Court of Delhi and asked for waiver of the six months wherein it wa argued that judgement passed by the Hon'ble Court  Supreme Court in ANIL KUKMARS's case was on different point and under different circumstances and reference to six months period in that case was only obitter. But, High Court did not accept the argument and Petition was dismissed.

Me and my client is now wondering that by the time we go to the Supreme Court and get the matter listed and heard, we will be very near in completring the Period of six months and then why should we spend or my client pay professional charges for filing SLP.

I still hold and belive that recent judgement is being interpreted wrongly. I am not sure whether is it part of some unwritten understanding or otherwise?? I am very sure the old rule of waiver of six months will not take too long to come back... Many would concur with me.. Isn't that ????

mr grover, (re dtd 25th jan), you must appriciate that Arts, 142, 226/227, sec 482 of crpc equipped the courts in diffrent distinguished ways. Though all the above Arts & secs powered the concerned court diffrent way but their usefulness is different. What art 142 can do, other arts, can not. For the sake of 'doing complete justice' the SC can order anything. IT is very powerfull and distinguished art. 

Sh. Arup ji,
(Ref.:  your short 25/1 post)
Your kind self says that "even district court can refer matter to SC".
Under what provisions a Trial Court can refer matter directly to SC and not to DJ or even to State HC ?
Kindly clarify.
Rgds.
 

Sc wants attention through this