Amardeep Singh v. Harveen Kaur

A husband and wife married in 1994 had lived apart since 2008 and settled all their disputes. They asked the Supreme Court to waive the six-month wait under Section 13B(2) of the Hindu Marriage Act, 1955. The Court held that this wait is directory, not mandatory.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

Amardeep Singh — appellant; the husband. He asked the Court to waive the six-month wait for divorce by mutual consent.

Harveen Kaur — respondent; the wife. She joined the settlement and the request for waiver.

Facts

1. The parties married on 16 January 1994 at Delhi (para 2).
2. Two children were born, in 1995 and 2003 (para 2).
3. The parties had lived separately since 2008, and their disputes led to civil and criminal proceedings (para 2).
4. On 28 April 2017 they settled all disputes and agreed to seek divorce by mutual consent. The wife was to get permanent alimony (a lasting maintenance payment after divorce) of Rs.2.75 crores. Custody of the children was to be with the husband (para 2).
5. HMA No. 1059 of 2017 was filed before the Family Court (West), Tis Hazari Court, New Delhi (para 2).
6. Their statements were recorded on 8 May 2017 (para 2).
7. The husband had handed over two cheques of Rs.50,00,000/-, both honoured, as part payment of the alimony (para 2).
8. The parties asked for the six-month period before the second motion (the joint motion both spouses make under Section 13B(2)) to be waived. They said they had lived apart for more than eight years, there was no possibility of reunion, and delay would affect their chances of resettlement (para 2).
9. They came to the Supreme Court because, on earlier decisions, only this Court could relax the period (para 2). They relied on Nikhil Kumar v. Rupali Kumar, where this Court waived the six months under Article 142 of the Constitution (para 3).

Section 13B in short. The judgment reproduces Section 13-B, "Divorce by mutual consent" (para 3):

1. Section 13-B(1): both spouses together may present a petition for divorce to the district court. The ground is that they have lived separately for one year or more and have not been able to live together. They have also mutually agreed that the marriage should be dissolved.
2. Section 13-B(2): both parties make a motion (the second motion). It must come not earlier than six months and not later than eighteen months after the petition is presented, and only if the petition is not withdrawn meanwhile. The court then hears the parties and makes the inquiry it thinks fit. If satisfied that the marriage took place and the petition is true, the court passes a decree of divorce.

Issues Raised

1. Is the minimum period of six months in Section 13B(2) of the Hindu Marriage Act, 1955 mandatory, or can it be relaxed in exceptional situations (para 1)?
2. Can the Family Court waive that period having regard to the interest of justice in an individual case (para 11)?

Arguments Contended

For the appellant (Amardeep Singh):

• He and the wife jointly asked for waiver of the six months on the grounds in the Facts above (para 2).
• He relied on Nikhil Kumar v. Rupali Kumar, where this Court waived the period under Article 142 (para 3).
• The judgment records no other argument by him.

For the respondent (Harveen Kaur):

• She joined the husband in the same request and the same reliance on Nikhil Kumar v. Rupali Kumar (paras 2–3).
• The judgment records no separate argument by her.

Amicus curiae (a lawyer appointed to assist the Court), Mr. K.V. Vishwanathan, senior counsel (paras 11–14):

• The waiting period in Section 13B(2) is directory and can be waived by the court where the proceedings are pending, in exceptional situations (para 13).
• Four High Court decisions support this view: K. Omprakash v. K. Nalini (Andhra Pradesh), Roopa Reddy v. Prabhakar Reddy (Karnataka), Dhanjit Vadra v. Smt. Beena Vadra (Delhi) and Dinesh Kumar Shukla v. Smt. Neeta (Madhya Pradesh). The Kerala High Court took the contrary view in M. Krishna Preetha v. Dr. Jayan Moorkkanatt (para 13).
• Section 13B(1) relates to the jurisdiction of the court. Section 13B(2) is procedural (para 13).
• The discretion to waive is a guided discretion, exercised in the interest of justice where there is no chance of reconciliation. The court should ask:
  1. How long have the parties been married?
  2. How long has the litigation been pending?
  3. How long have they stayed apart?
  4. Are there other proceedings between them?
  5. Have they attended mediation or conciliation?
  6. Have they reached a genuine settlement on alimony, custody and other pending issues? (para 13)
• The court must be satisfied of three things. The parties have lived apart for more than the statutory period. Efforts at mediation and reconciliation have failed. Further waiting will only prolong their agony (para 14).

Court's Reasoning

Opinion of Goel, J. (paras 4–9):

1. Noted: The Court noted a conflict of decisions on whether Article 142 could be used to waive the period. (para 5)
2. Noted: Manish Goel v. Rohini Goel, a two-Judge Bench, held that Article 142 could not be used to waive the six months.
   Why: That would be an order against a statutory provision. It cited Prem Chand Garg: an order under Article 142 cannot be inconsistent with the substantive provisions of the relevant statutes. (para 4)
3. Noted: Other decisions had used Article 142 where a marriage was "totally unworkable, emotionally dead, beyond salvage and broken down irretrievably". (para 5)
4. Noted: In Neeti Malviya v. Rakesh Malviya, the Court noted the conflict between Manish Goel and Anjana Kishore v. Puneet Kishore. It referred the matter to a three-Judge Bench. Divorce was granted in the meantime, so the matter became infructuous. (para 6)
5. Noted: The Court had used Article 142 in a number of cases even after Manish Goel, without referring to it. (para 7)
6. Noted: Anjana Kishore was a transfer petition where the parties settled. The Court waived the six months under Article 142 on the facts of the case. (para 8)
7. Noted: In Anil Kumar Jain v. Maya Jain, one party withdrew consent. The Court held the marriage had irretrievably broken down and granted the divorce.
   Why: Civil courts and the High Court could not act against the statute, but this Court could under Article 142 in the interests of justice. (para 8)
8. Held: Manish Goel holds the field until a larger Bench decides otherwise. Article 142 cannot be used against the statute when no proceedings are pending before this Court and it is approached only for waiver.
   Why: The reference in Neeti Malviya ended without a decision. (paras 6, 9)
9. Noted: Another question still had to be decided: whether Section 13B(2) is mandatory or discretionary.
   Why: Manish Goel did not decide it, as it was not raised. (para 10)
10. Noted: The Court appointed the amicus on 18 August 2017. (paras 10–11)
11. Noted: The six months lets the parties rethink, so that divorce is granted only if there is no chance of reconciliation. The cooling-off period guards against a hurried decision. It was not meant to perpetuate a purposeless marriage or prolong the parties' agony.
    Why: Under traditional Hindu law, marriage is a sacrament and cannot be dissolved by consent. The Act allowed dissolution on statutory grounds. The 1976 amendment introduced divorce by mutual consent. It was inspired by the thought that "forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose". (paras 15–16)
12. Held: Language alone is not always decisive. If holding a provision directory defeats its object, it is mandatory. If holding it mandatory creates serious inconvenience for innocent persons without furthering the object, it is directory.
    Why: The Court looks at the context, subject matter and object of the provision. It cited G.P. Singh's Principles of Statutory Interpretation, approved in Kailash v. Nanhku. (para 17)
13. Held: Where a court is satisfied that a case is made out, it can waive the period after considering four conditions. The waiver is then in the court's discretion. The court may use it where there is no possibility of the parties resuming cohabitation and there are chances of alternative rehabilitation.
    Why: The period "is not mandatory but directory". (paras 18–21)

Authorities

• Manish Goel v. Rohini Goel, (2010) 4 SCC 393: two-Judge Bench held Article 142 cannot waive the six months. The Court held it holds the field (paras 4, 9).
• Prem Chand Garg v. Excise Commr, AIR 1963 SC 996: quoted within Manish Goel; an Article 142 order cannot be inconsistent with substantive statutory provisions (para 4, footnote text).
• Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, and E.S.P. Rajaram v. Union of India, (2001) 2 SCC 186: Constitution Bench decisions cited within Manish Goel on the limits of Article 142 (para 4).
• State of Punjab v. Renuka Singla, (1994) 1 SCC 175; State of U.P. v. Harish Chandra, (1996) 9 SCC 309; Union of India v. Kirloskar Pneumatic Co. Ltd., (1996) 4 SCC 453; University of Allahabad v. Dr. Anand Prakash Mishra, (1997) 10 SCC 264; Karnataka SRTC v. Ashrafulla Khan, (2002) 2 SCC 560: cited within Manish Goel for the rule that no court can direct anything contrary to law (para 4).
• Nikhil Kumar v. Rupali Kumar, (2016) 13 SCC 383: relied on by the parties; the Court waived the six months under Article 142 (para 3). It is also listed among the Article 142 cases decided after Manish Goel (para 7).
• Poonam v. Sumit Tanwar, (2010) 4 SCC 460: reiterated that Article 142 was used for marriages that are dead and to end litigation (para 5).
• Neeti Malviya v. Rakesh Malviya, (2010) 6 SCC 413: noted the conflict between Manish Goel and Anjana Kishore and referred it to three Judges; it became infructuous (para 6).
• Anjana Kishore v. Puneet Kishore, (2002) 10 SCC 194: transfer petition; six months waived under Article 142 on its facts (para 8).
• Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415: divorce granted under Article 142 though one party withdrew consent (para 8).
• Cases where Article 142 was used after Manish Goel without referring to it (para 7): Priyanka Singh v. Jayant Singh, (2010) 15 SCC 390; Sarita Singh v. Rajeshwar Singh, (2010) 15 SCC 374; Harpreet Singh Popli v. Manmeet Kaur Pople, (2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234; Veena v. State (Govt of NCT of Delhi), (2011) 14 SCC 614; Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612; Devinder Singh Narula v. Meenakshi Nangia, (2012) 8 SCC 580; Vimi Vinod Chopra v. Vinod Gulshan Chpra, (2013) 15 SCC 547; Priyanka Chawla v. Amit Chawla, (2016) 3 SCC 126.
• Earlier Article 142 decisions noted in Manish Goel (para 5, footnote): Romesh Chander v. Savitri, (1995) 2 SCC 7; Kanchan Devi v. Promod Kumar Mittal, (1996) 8 SCC 90; Anita Sabharwal v. Anil Sabharwal, (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226; Kiran v. Sharad Dutt, (2000) 10 SCC 243; Swati Verma v. Rajan Verma, (2004) 1 SCC 123; Harpit Singh Anand v. State of W.B., (2004) 10 SCC 505; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit, (2005) 13 SCC 410; Durga Prasanna Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220; Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511; Satish Sitole v. Ganga, (2008) 7 SCC 734.
• K. Omprakash v. K. Nalini, AIR 1986 AP 167 (DB); Roopa Reddy v. Prabhakar Reddy, AIR 1994 Kar 12 (DB); Dhanjit Vadra v. Smt. Beena Vadra, AIR 1990 Del 146; Dinesh Kumar Shukla v. Smt. Neeta, AIR 2005 MP 106 (DB): High Court decisions treating the period as directory, cited by the amicus (para 13). M. Krishna Preetha v. Dr. Jayan Moorkkanatt, AIR 2010 Ker 157: contrary Kerala view (para 13).
• Kailash v. Nanhku, (2005) 4 SCC 480: approved G.P. Singh's test on mandatory and directory provisions, followed by the Court (para 17).
• Also cited in footnotes: State of Punjab v. Renuka Singla; University of Allahabad v. Dr. Anand Prakash Mishra; Karnataka SRTC v. Ashrafulla Khan; Prem Chand Garg v. Excise Commr; Romesh Chander v. Savitri; Kanchan Devi v. Promod Kumar Mittal; Anita Sabharwal v. Anil Sabharwal; Ashok Hurra v. Rupa Bipin Zaveri; Kiran v. Sharad Dutt; Swati Verma v. Rajan Verma; Harpit Singh Anand v. State of W.B.; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit; Durga Prasanna Tripathy v. Arundhati Tripathy; Naveen Kohli v. Neelu Kohli; Sanghamitra Ghosh v. Kajal Kumar Ghosh; Rishikesh Sharma v. Saroj Sharma; Samar Ghosh v. Jaya Ghosh; Satish Sitole v. Ganga; Priyanka Singh v. Jayant Singh; Sarita Singh v. Rajeshwar Singh; Harpreet Singh Popli v. Manmeet Kaur Pople; Hitesh Bhatnagar v. Deepa Bhatnagar; Priyanka Khanna v. Amit Khanna; Devinder Singh Narula v. Meenakshi Nangia; Vimi Vinod Chopra v. Vinod Gulshan Chpra; Priyanka Chawla v. Amit Chawla; Dhanjit Vadra v. Smt. Beena Vadra and Madhya Pradesh High; Dinesh Kumar Shukla v. Smt. Neeta; Krishna Preetha v. Dr. Jayan.

Judgement

1. The six-month period in Section 13B(2) is directory, not mandatory (para 21).
2. The appeal is disposed of. The parties are free to move the concerned court for fresh consideration in light of the order (para 23).
3. The waiver application can be filed one week after the first motion, giving reasons (para 19).
4. The court can use video conferencing (para 22).
5. The court can permit genuine representation of the parties through close relations such as parents or siblings. This applies where a party cannot appear in person for a just and valid reason (para 22).

Legal Principle / Ratio

The six-month period in Section 13B(2) is directory, so the court dealing with the matter can waive it if all four conditions are met (para 18). Waiver is then in the court's discretion (para 20). Key holding: the period "is not mandatory but directory" (para 21).

The four conditions:

1. The six months under Section 13B(2), in addition to the one year of separation under Section 13B(1), is already over before the first motion itself.
2. All efforts at mediation or conciliation, including under Order XXXIIA Rule 3 CPC, Section 23(2) of the Act and Section 9 of the Family Courts Act, have failed. No further effort is likely to succeed.
3. The parties have genuinely settled their differences, including alimony, custody of the child and any other pending issues.
4. The waiting period will only prolong their agony.

Subsequent Treatment

Shilpa Sailesh v. Varun Sreenivasan, Transfer Petition (Civil) No. 1118 of 2014, Supreme Court of India (Constitution Bench), decided 1 May 2023. Bench: Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari, JJ. Khanna, J. wrote the judgment.

• Why it arose. A 2010 order in Neeti Malviya doubted Anjana Kishore and Manish Goel. The doubt was whether this Court can reduce or waive the six months under Article 142 (para 1).
• What it said about Amardeep Singh. The Bench noted that Amardeep Singh held the cooling-off period can be waived in exceptional situations (para 17). It said waiver is not given on mere asking. The Court must be satisfied beyond doubt that the marriage has shattered beyond repair (para 17). It added that Amardeep Singh proceeds on the reading of Section 13-B(2). It does not examine whether this Court can grant divorce by mutual consent on a settlement under Article 142(1) (para 17).
• What it said about Manish Goel. Manish Goel did not decide whether the six months is mandatory or directory (para 34). The Bench held that Manish Goel and other decisions have to be read down in the context of the Court's power under Article 142(1) to do complete justice (para 40). It did not approve the remark in Poonam v. Sumit Tanwar that waiver of the six months is questionable (para 41).
• Answer on waiving the six months under Article 142. The Court answered that, in view of a settlement, it has the discretion to dissolve the marriage by divorce by mutual consent. It is not bound to have the second motion moved. It must use this power with care, keeping in mind the factors in Amardeep Singh and Amit Kumar v. Suman Beniwal (para 42(ii)). Section 13-B does not limit this power when its substantive conditions are met and the Court is convinced the decree should be granted (para 21).
• Wider Article 142 holding. This Court can depart from procedure and from substantive law, if it acts on considerations of fundamental general and specific public policy (para 42(i)).
• Irretrievable breakdown. The Court held that it has the discretion under Article 142(1) to dissolve a marriage on the ground that it has broken down irretrievably, even if the other spouse opposes. It must be satisfied that the marriage has completely failed, that the parties will not live together again, and that continuing the formal legal relationship is unjustified. It must also balance the position of the spouse who opposes the dissolution (para 42(iii)).
• No direct writ under Article 32. A party cannot file a writ petition under Article 32 and ask this Court directly for dissolution of marriage. The Bench agreed with Poonam v. Sumit Tanwar that the same applies to a writ petition in the High Court under Article 226. The remedy of a person unhappy with a court's decision is to go to the higher forum (para 41). Relief under Article 32 is for enforcing Part III rights on proof that they were infringed, and judicial orders cannot be corrected under it (para 41).
• Extra check. In Amit Kumar, the Court said it should also ascertain that the parties settled freely, without coercion (unlawful pressure that removes free will) or pressure, covering alimony, maintenance and custody of children. The Bench restated this alongside the Amardeep Singh factors (para 20).

Significance

• The Court settled that a Family Court can itself decide whether to waive the six-month period. Before this, the parties came to the Supreme Court for waiver (para 2).
• As decided in 2017, the Court also held that Article 142 could not be used to waive the period contrary to the statute, following Manish Goel (para 9). See Subsequent Treatment for the position after the Constitution Bench decision of 1 May 2023.
• The Court's approach follows the object of the cooling-off period: to prevent hurried decisions, not to prolong a marriage with no chance of reconciliation (para 16).

Exam-Important Points

• Rule: the six-month period in Section 13B(2) is directory, not mandatory (para 21). Trap: the one-year separation in Section 13B(1) is not what was waived. The Court treated it as already over before the first motion (para 18(i)).
• Four conditions for waiver: period already over before the first motion; mediation and conciliation failed; genuine settlement of alimony, custody and other issues; waiting only prolongs agony (para 18).
• Waiver is discretionary, not a right (para 20). Trap: meeting the conditions does not oblige the court to waive.
• Waiver application: filed one week after the first motion, with reasons (para 19).
• Article 142, as decided in 2017: could not be used to go against the statute, following Manish Goel v. Rohini Goel (para 9). Trap: the case was decided on the directory reading of Section 13B(2), not on Article 142. The position after 2023 is in Subsequent Treatment.
• Video conferencing and representation through close relations are allowed (para 22).
• The Court appointed an amicus curiae, Mr. K.V. Vishwanathan (para 11).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.