DAVINDER SINGH NARULA V.

MEENAKSHI NANGIA AIR 2012 SC 2890 – CASE

COMMENTRY

Introduction

Hindu law in its entirety does not recognise divorce. The Hindu belief that marriage forges an
irrevocable bond between the husband and wife is the cause for this. Thus, unless the divorce
is permitted by custom, neither partner to a marriage may divorce the other. But later, divorce
enters the scene as a result of colonial interpretations and the codification of Hindu laws.
Section 13 of the Hindu Marriage Act lists the grounds for divorce. The Hindu Marriage Act
of 1955 provides for divorce on the basis of mutual consent. This Act was amended in 1976
to include Section 13B. The parties whose marriage is solemnised before or after the
amended Act may seek remedy under this clause since it is both retrospective and prospective
from the start.

In the present case, one of the parties in the lower court filed a petition under section 12 of
the Hindu Marriage Act demanding to declare their marriage void and started living
separately after that. In the meantime, both parties decided to approach the court for a grant
of decree of divorce by mutual consent under 13B of the above-mentioned act. But the
statutory cooling-off period envisaged in the said section was not fully expired. Hence the
issue before the court was whether it has the competence to use the powers under Article 142
to grant a decree of divorce by mutual consent even before the completion of the cooling-off
period mentioned in section 13B of the act. The Supreme court held that it has the power to
issue the decree of divorce but it depends upon case to case basis.

Facts
 The Appellant filed a petition under Section 12 of the Hindu Marriage Act on
1.6.2011 that his marriage on 26.3.2011 was nullity.
 The parties to the marriage had been living separately since their wedding and had not
cohabitated since 1.6.2011, and in future also, they were of the opinion that they
would never live together.

 The parties were living separately, and the respondent was presently working in
Canada.
 While the matter is pending before the court under section 12, the parties agreed to
mediation.
 During mediation, the parties agreed to dissolve their marriage by filing a petition
Under Section 13-B for a grant of divorce by mutual consent.
 In the proceedings before the Mediator, the parties agreed to move appropriate
petitions Under Section 13-B(1) and 13-B(2) of the Act.
 Under such an agreement during the mediation proceedings, the parties filed an
application in the aforesaid pending HMA on 15.12.2011, indicating that they had
settled the matter through the mediation centre and that they would be filing a petition
for divorce by mutual consent on or before 15.4.2012.
 Subsequently, on 13.4.2012, the parties filed a joint petition Under Section 13-B of
the Act on which the order came to be passed by the learned Additional District Judge
-01, West Delhi, fixing the date for the second motion on 15.10.2012.
  Aggrieved by the said order of the learned Additional District Judge, fixing the date
of the second motion after six months, the Petitioner has moved to Supreme Court by
way of appeal.

Issues

1. Whether the Supreme Court under Article 142 of the Constitution can grant a decree
of divorce by mutual consent even before the non-expiry of the statutory cooling-off
period mentioned under section 13B or not?

Arguments
Arguments from both sides:

 It was argued that since more than 18 months had elapsed from the date of the original
petition under Section 13 of the Hindu Marriage Act, 1955, was filed and the said
period could be counted towards the cooling period of six months stipulated under
Section 13-B of the said act.

 It was contended that because of this delay, the parties have already completed the
waiting period of six months, as mentioned under Section 13-B of the Hindu Marriage
Act.
 They also argued that they met the conditions mentioned in Section 13-B(1) of the
Act by saying that they had been living separately for more than a year and had
mutually agreed to dissolve the marriage.
 Except for the application not being made under Section 13-B, the other criteria had
been duly fulfilled.
 Hence a decree of dissolution of the marriage by way of mutual divorce should not be
denied to them since four months out of the waiting period of six months envisaged
under Section 13-B had already been completed.

 It was contended that as was done in Anil Kumar Jain v. Maya Jain case, this Court
could invoke its powers under Article 142 of the Constitution in the parties’ best
interest and award them the decree of divorce.

Arguments on behalf of the State:

 The state submitted that considering the statutory provisions, the prayer made by both
parties should not be entertained because it would lead to confusion in the minds of
the public and would be against the public interest.

Judgement

The Supreme Court held that the legislature under Section 13-B (2), stipulated a cooling
period of at least six months from the date of filing of a petition for mutual divorce till the
such divorce is granted, with the intention that the institution of marriage would be saved.
Court also held that the purpose of the legislature or the legislative wisdom is not at fault.
Court also held that there might be certain situations where marriage has reached an
irreconcilable position; it becomes necessary for the Court to invoke its powers under Article
142 of the Constitution to do complete justice to the parties concerned.

The court held that, in the case of Kiran v. Sharad Dutt1, which was considered in Anil
Kumar Jain v Maya Jain2 case, the parties were living separately for many years and
already a proceeding section 13 was going on. However, 11 years after initiating proceedings
under Section 13, the parties filed a joint application before the Supreme Court for leave to
amend the divorce petition and to convert their petition into a divorce by mutual consent
proceeding under Section 13-B of the Act. The court treated the same as a petition under
Section 13-B, it invoked its powers under Article 142, granted a decree of mutual divorce at
the stage of the special leave petition stage itself

Hence, in different cases in different situations, the Court had invoked its powers under
Article 142 of the Constitution to do complete justice between the parties.

The court was also of the opinion that, in every case of dissolution of marriage under Section
13-B of the Act, it’s not advisable to use the powers under Article 142 . But in “appropriate
cases invocation of such power would not be unjustified and may even prove to be
necessary”.

The Court after analysing the material facts observed that although the marriage was
solemnized on 26.3.2011, within 3 months of the marriage the Petitioner filed a petition
under Section 12, for a decree of nullity of the marriage. And thereafter the parties were
living separately for more than 1 year. Hence Court said that there appear to be no marital ties
between the parties at all. “It is only the provisions of Section 13-B(2) of the aforesaid Act
which keeps the formal ties of marriage between the parties subsisting in name only”.

The court held that the condition mentioned in Section 13-B for the grant of a decree of
dissolution of marriage by mutual consent is present in this case. The grant of divorce is
delayed because of the statutory cooling period of six months. Hence this case falls under
peculiar circumstances, where the court may invoke its powers under Article 142. It said that
since the four months of the statutory cooling-off period had already passed, and they were
not in a position to discharge their marital obligation towards each other, it has no reason to
delay the decree of divorce to the parties concerned.

Hence the Court allowed the appeal and converted the pending proceedings under Section 12
of the Hindu Marriage Act, 1955, before the Additional District Judge-01, West Delhi, into
one under Section 13-B. And by invoking its powers under Article 142 of the Constitution, it
granted the parties a decree of mutual divorce.

Analysis

The scope of the statutory cooling period mentioned under section 13B and its importance is
discussed in this case. Section 13 B itself provides for a cooling period of 6 months on the
first motion being moved, in the event the parties changed their minds during the said period.
Accordingly, after the initial motion and presentation of the petition for mutual divorce, the
parties are required to wait for a period of six months before the second motion can be
1
(2000) 10 SCC 243
2
(2010) 10 SCC 415
moved. In the meantime, if the parties have made up their minds it would be unable for them
to live together, then the court after making such inquiry, as it may consider fit, can grant a
decree of divorce declaring the marriage to be dissolved with effect from the date of such
decree.

As a result, the section's key components are:

1. The parties must have lived apart for at least a year.

2. The parties have been unable to cohabit.
3. The divorce was agreed upon by both parties.

The judiciary has provided various interpretations with regard to each of these prerequisites,
which are detailed below.

In the case of K. Thiruvengadam V. Nil3, Court held that the period of six months provided
in section 13-B (2) cannot be taken as mandatory. Because if it is taken as mandatory the very
purpose of the liberalized concept of divorce by mutual consent will be disturbed, especially
when the parties have been living separately and there is no chance of reunion among them.

Judiciary in many decisions have spoken about the nature of the transition period mentioned
in the above-mentioned section. In the case of Suman v. Surendra Kumar4, the court said
that the period of 6 to 18 months provided in the said section is a period of interregnum and it
is intended to give sufficient time and opportunity to the parties to introspect on their earlier
move. In this transitional period, either of the parties may have second thoughts.

In the case of Suresh Devi v. Om Prakash5, the court said that the period of separate living
for one year must immediately precede the presentation of the petition. The court also said
that the expression “living separately” connotes not living like husband and wife and it has no
reference to the place of living. The parties might be living under the same roof and yet they
might be living as husband and wife. In other words, the parties should have no desire to
perform marital obligations.

In the same case, the court held that the transitional period under 13B is given to the parties
to give time and opportunity to reflect on their decision and to get timely advice. It also said
that mutual consent should exist till the decree of divorce is granted. It is essential that the
court should be satisfied with the bona fides and consent of the parties. During proceedings,
if the court is satisfied that there is no consent between the parties, then the court does not
have any jurisdiction to grant a decree of divorce. The reason given by the court is that “if the
court is held to have the power to make a decree solely based on the initial petition, it negates
the whole idea of mutuality”.

With respect to the withdrawal of consent Supreme Court in the Hitesh Bhatnagar v. Deepa
Bhatnagar6 case, held that one of the parties may withdraw his/her consent at any time
before passing of the decree, even after the expiry of 18 months from the date of filing of the
petition for dissolution marriage under section 13B of Hindu Marriage Act, 1955.

3
AIR 2008 Mad 76
4
AIR 2003 Raj 155
5
AIR 1992 SC 1904
6
AIR 2011 SC 1637
Conclusion

We can infer from this case and other precedents that section 13B contemplates two steps that
must be taken before proceeding, the first of which is the separation of both parties for a
period of one year and the second of which is the consent of both parties when the court is
moved on a motion after the period of six months specified in the section. This is the case
because unless both parties consent at the moment of the court's investigation, the court
cannot be said to be seized of jurisdiction. The only thing that gives the court jurisdiction
under this clause is consent. When the conditions necessary for a divorce to be granted under
the section are listed, a decree of divorce cannot be issued if the requirements are not met.
The Supreme Court may in order to provide full justice, however, exercise its authority under
Article 142 to award a judgement of divorce by mutual consent in rare cases where the
marriage has reached a condition of non-reconciliation and neither party is ready to perform
their marital obligations.