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A two Judge Bench of Supreme Court comprising Justices AK Goel and UU Lalit held that the 6 months waiting period prescribed under Section 13B(2) of Hindu Marriage Act for divorce by mutual consent is not mandatory and can be waived under certain circumstances.
A Special Leave Petition was filed by the Appellant Amardeep Singh while Harveen Kaur was the Respondent.
The question which arises for consideration in this appeal is whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.
There is conflict of decisions of this Court on the question whether exercise of power under Article 142 to waive the statutory period under Section 13B of the Act was appropriate. This Court noted that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony. This view was reiterated in Poonam versus Sumit Tanwar
Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2).
The court is of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.