Section 13B of The Hindu Marriage Act, 1955 (“Act”), reads as:
“Divorce by mutual consent –
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they 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.
(2) 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”
On 29.03.2016, Nikhil Kumar and Rupali Kumar filed a petition under Section 13B(1) before the Family Court, Delhi. The Family Court granted the First Motion on 01.04.2016 and the matter was posted for October, 2016. An appeal was filed before the SC, invoking its jurisdiction under Article 136 read with Article 142 , praying for waiving the six months’ waiting period required under Section 13B(2). Despite not even a month having elapsed since the presentation of petition, the SC in Nikhil Kumar v. Rupali Kumar [Civil Appeal No. 4490 of 2016] (“Nikhil“) accepted that prayer with the order, “the statutory period of six months is waived and the marriage between the parties is dissolved.”
The SC has always exercised its power under Article 142 for dissolving marriages that are ‘totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably‘, even if the facts of the case do not provide a ground in law on which the Divorce could be granted.
A Coordinate Bench in Poonam v. Sumit, (2010) 4 SCC 460 (“Poonam“) however warned that the SC, “generally should not issue any direction to waive statutory requirements“; the statutory period of six months for filing the second petition under Section 13B(2) has been prescribed for providing an opportunity to parties to reconcile and withdraw petition for dissolution of marriage.
Unfortunately, neither Poonam nor Nikhil throw light on the issue whether the statutory period prescribed under Section 13B(2) of the Act is mandatory or directory and if directory, whether the same could be dispensed with. A matter for a Larger Bench, surely.