S. 13B (2) of the Hindu Marriage Act, 1955 envisages the procedure to be followed in cases of divorce by mutual consent. The section contemplates that the petition of divorce after being presented shall be heard by the court not before six months from the date of presentation of the same and not later than eighteen months, on the motion being made by both the spouses. Thus, the ingredients of the said section contemplate two aspects:
Firstly, it provides a period of interregnum (waiting or cooling period) i.e. a minimum of six months and the maximum of eighteen months, which has been envisaged to enable the spouses to introspect before seeking divorce;
Secondly, it requires that the motion should be made by both the parties, at the time of presenting a petition of divorce and also at the time of divorce decree being granted.
S. 13B (2): MANDATORY OR DIRECTORY?
The question arises as to whether the waiting period of six and eighteen months provided in the sub-section mandatory or directory in nature, implying that are the courts at liberty to grant a quick decree of divorce by waiving of the minimum statutory period of six months as mentioned in the section? A bare reading of the section leads to no conclusion in this regard. The intention of the lawmakers behind providing a waiting period in this section is very clear. As per our Hindu law, marriage is a sacrosanct institution and the severance of marital ties is a matter of grave import, hence the spouses have been given time to reconsider their decision, before taking the drastic step.
Our Hon’ble Supreme Court in its wisdom has although recognised this notion, but has faltered at times, leaving behind certain grey areas. Supreme but not infallible, the court has overstepped the bounds of law as set out in the provision and granted a decree of divorce by waiving of the cooling period. What is astonishing is the fact that the court has not even hesitated to grant a divorce decree, even in cases where one of the spouses has withdrawn her consent, whereas the section contemplates of divorce decree by “mutual” consent only.
IRRETRIEVABLE BREAKDOWN OF MARRIAGE
Now, for this unusual exercise of power there has to be a reason and a source for the same. The courts rationale behind this exercise of power is the ground of irretrievable breakdown of marriage. This ground postulates that the marriage ties have broken to the extent that they are beyond salvage or repair, there being no chance of reconciliation between the parties. Irretrievable breakdown of marriage is not a recognised ground of divorce under the Hindu Marriage Act, 1955 but the same has been recognised by the courts for granting divorce. A three judge bench in Naveen Kohli v. Neelu Kohli, acknowledging the recommendations of the 71st Law Commission Report, has appealed to the Legislature that the same should be made a ground of divorce. As a consequence of this decision the 18th Law Commission in its 217th report has further recommended the same. In fact a recent move seeks to bring the desired changes in the Hindu Marriage Act, 1955. The court by granting divorce on this ground is trying to fulfil the individual liberty which is conducive in the realisation of personal happiness.
THE SOURCE OF POWER
This edifice, i.e. granting divorce on a ground which is nowhere mentioned in the Act, without waiting for the minimum statutory period is created on the superstructure of Article 142 of the Constitution of India. This maverick provision is that extraordinary arrow in the quiver of the apex court which is the panacea of all ills. Although this note does not deal with the same it must be mentioned, that Article 142 has been invoked by the court whenever the existing laws do not provide any guidance as to the adjudication of a matter. It allows the court to pass necessary orders or to grant a decree in nebulous cases where the existing laws are found to be inadequate. The point which is of vintage value is that this power is available only to the apex court and not to any other court in the country.
THE LAW AS LAID DOWN BY THE APEX COURT
A sincere attempt was made lately by the Supreme Court in Anil Jain v. Maya Jain to clear the position of law in this regard. The court asserting its supremacy opined that in a proceeding under S. 13 B of the Hindu Marriage Act, 1955, it would be open only for the apex court to grant a divorce decree based on the ground of irretrievable breakdown of marriage. Clarifying further the highest court in the country held that while granting relief it was open for the court to give a go-by to the minimum statutory period, in the exercise of its power under Article 142 of the Constitution.
THE FALLOUT OF ANIL JAIN CASE
The law as laid down by the court has two adverse consequences:
- By waiving of the minimum cooling period, the court is depriving the spouses to reconsider their decision, who in their anguish to bring a quietus to their marital relations seek a quick divorce decree.
- As this quick decree of divorce can be granted by the apex court only, in the exercise of its powers under Article 142, a large number of parties are bound to approach the doors of the court, leading to substantial increase in the pendency of cases.
And soon enough, the apex court came to realise the fallacy it had perpetrated in the Anil Jain case, when a highly qualified couple approached the court just after 48 hours of their marriage, seeking a divorce decree. The decree of divorce was denied on other technical grounds but the questions remained unanswered. In yet another case an impassioned plea was made before the court to waive of the minimum statutory period of six months, but the court was vigilant enough to refuse the same.
The ultimate decision in the Anil Jain case may not be faulted, but the court needs to clarify the situations in which it can grant a divorce decree, ignoring the minimum statutory period as mentioned in S. 13 B(2). Lately, a two-judge bench of the apex court in Neeti Malviya v. Rakesh Malviya has referred this question to a three-judge bench, that whether the period prescribed in Section 13B(2) of the Act can be waived or reduced by the Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution.
It may be relevant to summarize a more plausible interpretation of Article 142 vis-à-vis Section 13B(2) of the Act that the said power can be invoked to waive of the statutory period of six months, only when the spouses have been involved in litigation for a long period of time, which is more than the minimum or maximum limits of the cooling period, and the Courts (including the Supreme Court) have failed to bring about reconciliation between the parties. It is submitted that although there is no sagacity in retaining a dead marriage, the same has to be done with due circumspection. Wisdom lies in accepting the pragmatic solution, that the court should bring a quietus to the marital relations as a matter of last resort only, after it has failed to bring an amicable settlement between the spouses.
 Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226
 (2006) 4 SCC 558, at 578-579
 Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406, Union Carbide Corporation v. U.O.I (1991) 4 SCC 584
 (2009) 10 SCC 415
 Poonam v. Sumit Tanwar (2010) 4 SCC 460
 Manish Goel v. Rohini Goel (2010) 4 SCC 393
 (2010) 6 SCC 413, at 417.
Dr. Ram Manohar Lohiya National Law University, Lucknow.
Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011