Amardeep Singh v. Harveen Kaur (2017)

Divorce by mutual consent under s. 13B has two motions. The first is the joint petition, maintainable only where the parties have been living separately for a year or more, have not been able to live together, and have mutually agreed that the marriage should be dissolved. The second motion may be made not earlier than six months and not later than eighteen months after the presentation of the petition. That six-month gap — the cooling-off period — was widely treated as an absolute bar, so that only the Supreme Court, using Article 142, could release a couple from it.

This decision moves the power down to the court hearing the case. It holds that the six-month period is directory, not mandatory, and lays down the conditions on which the court dealing with the matter may waive it. For this paper it is the current law on the working of s. 13B, and it is the case to cite whenever a question asks whether the cooling-off period can be dispensed with.

The parties married at Delhi on 16 January 1994 and had two children, born in 1995 and 2003. They had been living separately since 2008. Their disputes had produced both civil and criminal proceedings. On 28 April 2017 they arrived at a settlement resolving all the disputes and seeking divorce by mutual consent: permanent alimony of Rs. 2.75 crores to the wife, of which the husband had already handed over two cheques of Rs. 50,00,000 each, duly honoured, and custody of the children with the husband. A petition was filed before the Family Court at Delhi and the parties' statements were recorded on 8 May 2017.

They sought waiver of the six-month period for the second motion, on the ground that they had been living apart for more than eight years, that there was no possibility of reunion, and that delay would affect their chances of resettlement. They came to the Supreme Court because, on the decisions as they then stood, only that Court could relax the period.

The Court held that the period mentioned in s. 13B(2) is not mandatory but directory, so that it is open to the court dealing with the matter to exercise its discretion in the facts and circumstances of each case where there is no possibility of the parties resuming cohabitation and there are chances of alternative rehabilitation.

The conditions for waiver. The court must be satisfied, on the following, before it waives the period:

1. the statutory period of six months specified in s. 13B(2), in addition to the statutory period of one year of separation under s. 13B(1), is already over before the first motion itself;
2. all efforts at mediation and conciliation — including efforts under Order XXXIIA Rule 3 of the Code of Civil Procedure, s. 23(2) of the Hindu Marriage Act and s. 9 of the Family Courts Act — to reunite the parties have failed, and there is no likelihood of success by any further efforts;
3. the parties have genuinely settled their differences, including alimony, custody of the child and any other pending issues between them;
4. the waiting period will only prolong their agony.

Procedure. The waiver application may be filed one week after the first motion, giving reasons for the prayer for waiver. If the conditions are satisfied, waiver is in the discretion of the concerned court — it is not a right. The Court added that in conducting such proceedings the court may use video conferencing, and may permit genuine representation through close relations such as parents or siblings where a party cannot appear in person for a just and valid reason.

The Court also held, on the Article 142 question, that since the two-judge decision in Manish Goel held the field in the absence of a contrary decision by a larger Bench, the power under Article 142 cannot be exercised contrary to statutory provisions, especially where no proceedings are pending before the Supreme Court and it is approached only for the purpose of waiving the statute. The parties were left at liberty to move the concerned court afresh in the light of the order.

1. Separate the two questions. There was a conflict in the decisions on whether Article 142 could be used to waive the statutory period; one line held it could not, because that would be an order in contravention of a statute, while the power had in fact been exercised in a number of cases where the marriage was found to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. The Court did not resolve that conflict in the petitioners' favour. Instead it noticed that the real question had never been examined — whether s. 13B(2) is mandatory or directory — and that in the leading decision counsel had been unable to argue the point. If the provision is only directory, Article 142 is not needed at all. That is the move the case turns on.

1. Find the object of the provision. Under traditional Hindu law marriage was a sacrament and could not be dissolved by consent; divorce by mutual consent was introduced by the amendment of 1976. The bar in s. 13B(2) was laid down to enable the parties to have a rethink, so that a decree is granted only if there is no chance of reconciliation. The object of the provision as a whole is to let parties dissolve a marriage that has irretrievably broken down and to enable them to rehabilitate themselves; the object of the cooling-off period is to safeguard against a hurried decision where differences might still be reconciled. The object was not to perpetuate a purposeless marriage or to prolong the parties' agony where there is no chance of reconciliation. Every effort must be made to save a marriage, but where there is no chance of reunion and there are chances of fresh rehabilitation, the court should not be powerless to let the parties take a better option.

1. Mandatory or directory is decided by object, not by language. The Court applied the settled principle that language alone is most often not decisive, and that regard must be had to the context, the subject matter and the object of the provision. If the object of the enactment would be defeated by holding a provision directory, it is construed as mandatory; if holding it mandatory would create serious general inconvenience to innocent persons without much furthering the object, it is construed as directory. Applied here, insisting on the six months where reconciliation is already impossible defeats the object rather than serving it.

1. Jurisdiction versus procedure. The amicus curiae's submission, which the Court's conclusion follows, was that s. 13B(1) goes to the jurisdiction of the court — the petition is maintainable only if the one-year separation and the other requirements are made out — while s. 13B(2) is procedural. Note the consequence for an answer: the one year under s. 13B(1) is not waivable; only the six months under s. 13B(2) is.

1. A guided discretion. The discretion is not at large. It is guided by the interest of justice where there is no chance of reconciliation and the parties have already been separated, or have been contesting proceedings, for longer than the period in s. 13B(2). The questions put by the amicus, which the Court recorded, are the practical checklist: how long the parties have been married; how long the litigation has been pending; how long they have been staying apart; whether there are other proceedings between them; whether they have attended mediation or conciliation; and whether they have arrived at a genuine settlement taking care of alimony, custody and other pending issues.

It opens every question on mutual-consent divorce. State the two motions and the three time limits — one year of separation, not earlier than six months, not later than eighteen months — and then state this case for the proposition that the six months is directory and may be waived by the court dealing with the matter, on the four conditions, on an application filed a week after the first motion. It also serves a general question on statutory interpretation in family law: it is a clean worked example of deciding whether a provision is mandatory or directory by reference to its object.

It disposes of the belief that only the Supreme Court can release a couple from the cooling-off period, and the argument that a family court is powerless because the words of the sub-section are imperative. It equally disposes of the opposite error — that Article 142 is a general warrant to waive statutory requirements; the Court held it is not.

It does not decide anything about the one-year separation requirement in s. 13B(1), which goes to jurisdiction and is untouched. It does not create a right to waiver: satisfaction of the four conditions leaves the matter in the court's discretion. It does not recognise irretrievable breakdown as a ground of divorce. And it says nothing about the position where one party withdraws consent before the second motion — the mutual consent must subsist, and that question belongs to a different line of authority.