Six month period waive application
vinod bansal
(Querist) 10 September 2011
This query is : Resolved
R/Experts
Kindly provide me citation/Date of judgment in which supreme court has held that in petition us 13 B of HMA only supreme court alone can waive of mandatory period of six months.Regards
Devajyoti Barman
(Expert) 10 September 2011
This 6 months time can no more be waived as made clear by the supreme court.
prabhakar singh
(Expert) 10 September 2011
Expert : Devajyoti Barman is right.
Kiran Kumar
(Expert) 11 September 2011
dear Vinod that judgment was subsequently contradicted by a coordinate bench of the SC and the matter was referred to a larger bench.
So at present the situation is even the SC can not waive the period of 6 months.
I am not aware of the title of the judgment at the moment, but the bench was headed by Hon'ble D.K. Jain, J.
the question raised was Whether SC while exercising its powers under Article 143 of the Constitution of India can ignore/ overrule the statutory provisions?
Guest
(Expert) 11 September 2011
I agree with experts.
Arif Iqbal
(Expert) 11 September 2011
I was not aware of the development... Thank you experts and Mr Bansal (for the query)
vinod bansal
(Querist) 11 September 2011
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (C) No.899 OF 2007
Neeti Malviya ... Petitioner
VERSUS
Rakesh Malviya ... Respondent
O R D E R
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 Goel1 and Smt. Poonam Vs.
1 2010 (2) SCALE 332
2
Sumit Tanwar2, 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,
2 JT 2010 (3) SC 259
3
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 subsection
(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
4
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 Kishore3, 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 subsection
(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 Jain4, 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
3 (2002) 10 SCC 194
4 (2009) 10 SCC 415
5
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., Allahabad5, wherein it was held that an order
which this Court can make in order to do complete justice between the
5 AIR 1963 SC 996
6
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.
7
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.
8
….........................................J.
[D.K. JAIN]
.…........................................J.
[C.K. PRASAD]
NEW DELHI,
MAY 12, 2010.
9
girish shringi
(Expert) 13 September 2011
Good knowledge share by Mr.Vinod Bansal.
prabhakar singh
(Expert) 13 September 2011
Yet to be seen which way the larger bench turns.
R.Ramachandran
(Expert) 13 September 2011
The matter Neeti Malviya vs. Rakesh Malviya (TC No. 899 of 2007) was finally disposed of on 23.8.2011.
The SC did not decide the question of the power of SC to waive the 6 month period.
The SC disposed of the matter holding as under:
"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."
Please find attached the relevant decision.
