Deciding Authority: Supreme Court of India
Name of the Judges: Justice D.K. Jain, Justice C.K. Prasad
Date of Judgment: 12 May 2010
Facts of the Case: The transfer petition was 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). 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 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.
Issue: 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 and Smt. Poonam Vs. Sumit Tanwar, 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.
Judgment: 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 no 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. 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. The question with which the Court was concerned in the present petition was 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 was whether or not this Court can reduce or waive of the statutory period of six months, as stipulated in the said provision? In several cases, the Court had invoked 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. In Anjana Kishore Vs. Puneet Kishore, 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.
Decision: The Court directed the Registry to place the papers of this case before the Hon’ble Chief Justice of India for appropriate orders. It was 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 the day. 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.
By: Roopali Mohan, 2nd Year, Vivekananda Institute of Professional Studies, New Delhi
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