The Supreme Court has once again invoked powers granted to
it under Article 142 of the Constitution to dispense “complete justice” and
granted divorce by mutual consent to a couple without waiting for the mandatory
waiting period to be over. In Aditi Wadhera v Vivek Kumar Wadhera, the court
took the view that invocation of Article 142 was justified and required to meet
the ends of justice, and granted divorce to the couple after they submitted
that they had resolved all pending and contentious issues amicably.

Under the Hindu Marriage Act, 1955, the couple has to live
separately for at least one year, jointly file for grant of divorce by mutual
consent thereafter and then wait for six months before jointly filing a second
motion. Only then can the divorce decree be issued in lower courts. Hence, the
process needs at least eighteen months.

The relevant section 13 B reads as follows:

13-B. 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, 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
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said date, if the petition is not withdrawn in the meantime, the court shall,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.

The legislative intent of providing a time period of six
months between filing for divorce by mutual consent and the second petition for
the same was to give the couple time to reconsider their decision to end the
marriage and maybe reconcile and withdraw the first petition before the date of
the second motion. This was clarified by the Rajasthan High Court in Smt. Suman
v Surendra Kumar.

The court said that “it is well recognised that the object
of second motion after six months of the first motion and a further period of
one year being allowed after expiry of the initial period of six months from
the date of the first application, is to allow the parties to do some
re-thinking because dissolution of a marriage is a serious matter and has
serious consequences for the parties and the children, if any from the marriage.
The period of 6 to 18 months provided in Section 13B of the Act is a period of
interregnum which is intended to give time and opportunity to the parties to
reflect on their move. In this transitional period the parties or either of
them may have second thoughts. Either party or both of them may change their
mind and decide not to proceed with the petition. Either party can, therefore,
approach the court and convey its decision to the court either way. But, this
cannot be left as a matter of inference to be drawn by the court. A positive
act on the part of either party is required.”

That the consent of both parties is required at both times –
when filing the first motion and also during the filing of the second motion –
was reiterated by the apex court in Smt. Sureshta Devi v Om Prakash, but the
Rajasthan High Court also recognised that any withdrawal of consent by either
party had to be through a positive act and should be done expressly. The court
said that mere silence of one of the parties was not to be taken as withdrawal
of consent.

The High Court said in Smt. Suman’s case (supra) that
“silence cannot be taken to amount to withdrawal of consent. By his continued
silence the respondent-husband has frustrated the proceedings for more than
three years. If he was withdrawing his consent for dissolution of marriage by a
decree of divorce by way of mutual consent, nothing prevented him from taking
that stand before the Family Court at the stage of second motion. The husband
on the other hand decided to adopt a course of silence in order to further
harass the wife. We are not inclined to take a too technical view of
Sub-section (2) of the Section 13B of the Act and fall in the same error as the
Family Court did. Merely because the second motion was not signed by both the
parties it cannot be said that the consent of the husband was missing at the
second stage. On account of silence of the husband, rather we would like to
take a view that the consent to decree of divorce being granted has to be
presumed. What is important is consent of parties. Format is not important.
Substance is to be seen. This is a case of total silence on the part of the
husband on the question of consent at the stage of the second motion. Should we
infer the negative from silence? We are of the view that if the husband wanted
to withdraw his consent he should have taken a positive stand for that purpose.

“There was nothing which prevented him from informing the
court that he was withdrawing his consent for decree of divorce by mutual
consent. When the husband has himself left the matter for inference, the
inference ought to be drawn in favour of consent rather than for absence of
consent. The husband had already given his consent for the decree of divorce at
the time of the first motion and he alone could withdraw the consent by a
positive act, otherwise the inference would be that the consent which was
initially given continues. Therefore, in the facts of the present case, the
conclusion is inevitable that the consent of the husband for divorce by mutual
consent was available at the stage of the second motion and the Family Court
ought to have granted the decree of divorce. The words ‘on the motion of both
the parties’ occurring in Sub-section (2) of Section 13B have to be red as meaning
that consent of both the parties is available at the stage of second motion.
What is of importance is consent and not the format of moving the second
motion.”

But what do the courts do when one of the parties expressly
withdraws consent before the date of the decree even when the marriage is
irretrievably broken for all practical purposes? This position was brilliantly
explained by the apex court in Anil Kumar Jain v Maya Jain.

Referring to numerous judgments, the court came to the
conclusion that only the Supreme Court had the powers to grant divorce under
such circumstances, by even converting a section 13 plea to one under 13B and
using its powers under Article 142. The arguments put forward by the court in
the said case need to be quoted in full for clear understanding.

The court argued that “the question whether the consent of
both the parties given at the time of presentation of the petition for mutual
divorce under Section 13B of the Act must continue till the decree is finally
passed, has been the subject matter of several decisions of this court. The
issue was raised in the case of Smt. Sureshta Devi v Om Prakash [(1991 2 SCC
25], wherein this court held that the consent given by the parties to the
filing of a petition for mutual divorce had to subsist till a decree was passed
on the petition and that in the event, either of the parties withdrew the
consent before passing of the final decree, the petition under Section 13B of
the Hindu Marriage Act would not survive and would have to be dismissed.

“Subsequently, however, in Ashok Hurra’s case (supra),
doubts were expressed by this court with regard to certain observations made in
Sureshta Devi’s case (supra) and it was felt hat the same might require
re-consideration in an appropriate case. Basing its decision on the doctrine of
irretrievable break-down of marriage, the Hon’ble Judges were of the view that
no useful purpose would be served in prolonging the agony of the parties to a
marriage which had broken down irretrievably and that the curtain had to be
rung down at some stage. It was further observed that the court had to take a
total and broad view of the ground realities of the situation while dealing
with adjustment of human relationships. Their Lordships placed reliance on the
decision of this court in Chandrakala Menon (Mrs.) & Anr. v Vipin Menon
(Capt.) & Anr. [(1993) 2 SCC 6], in arriving at such a conclusion. In the
said case, although, indisputably consent for the petition under Section 13B of
the Act was withdrawn within a week from the date of the filing of the joint
petition, the court, in exercise of its powers under Article 142 of the
Constitution, granted decree of divorce by mutual consent under Section 13B of
the Act and dissolved the marriage between the parties in order to meet the
ends of justice, subject to certain conditions. It was also made clear that the
decree would take effect only upon satisfaction of the conditions indicated
therein.

“The decision in Ashok Hurra’s case (supra) to invoke the
power under Article 142 of the Constitution was, thereafter, followed in
several cases based upon the doctrine of irretrievable break-down of marriage.

“In keeping with the trend of thought which found expression
in Ashok Hurra’s case (supra) another question arose before this court in the
case of Sandhya M. Khandelwal v Manoj K. Khandelwal [(1998) 8 SCC 369], which
had come up before this court by way of a transfer petition seeking transfer of
a matrimonial suit. During the pendency of the transfer petition before this
court, the parties settled their disputes, and, although, the petition involved
a proceeding under Section 13 of the Hindu Marriage Act, 1955, keeping in mind
the settlement arrived at between the parties and also the interest of the
parties, this court granted a decree of divorce by treating the pending
application as one under Section 13B of the said Act.

“The views expressed in Ashok Hurra’s case (supra) were
echoed in Anita Sabharwal v Anil Sabharwal [(1997) 1 SCC 490] and in the case
of Kiran v Sharad Dutt [(2000) 10 SCC 243]. In the former case decree for
mutual divorce was granted without waiting for the statutory period of six
months. In the latter case, after living separately for many years and after 11
years of litigation involving proceedings under Section 13 of the Hindu
Marriage Act, 1955, the parties filed a joint application before the court for
amending the divorce petition. Treating the said divorce petition as one under
Section 13B of the Act, this court, by invoking its powers under Article 142 of
the Constitution, granted a decree of mutual divorce at the SLP stage.

“Without referring to the decisions rendered by this court
in Ashok Hurra’s case (supra) and in Kiran’s case (supra), a three Judge bench
of this court in the case of Anjana Kishore v Puneet Kishore [(2002) 10 SCC
194], while hearing a transfer petition, invoked its jurisdiction under Article
142 of the Constitution, and directed the parties to file a joint petition
before the Family Court at Bandra, Mumbai, under Section 13B of the Hindu Marriage
Act, 1955, for grant of a decree of divorce by mutual consent, along with a
copy of the terms of compromise arrived at between the parties. This court also
directed that on such application being made, the Family Court could dispense
with the need of waiting for six months as required by Sub-Section (2) of
Section 13B of the Act and pass final orders on the petition within such time
as it deemed fit. This court directed the Presiding Judge to take appropriate
steps looking to the facts and circumstances of the case emerging from the
pleadings of the parties and to do complete justice in the case.

“Again in the case of Swati Verma (Smt.) v Rajan Verma &
Ors. [(2004) 1 SCC 123], which was a transfer petition, the doctrine of
irretrievable break-down of marriage was invoked. Pursuant to a compromise
arrived at between the parties and leave granted by this court, an application
was filed under Section 13B of the Hindu Marriage Act read with Article 142 of
the Constitution and having regard to the aforesaid doctrine, this court, in
exercise of its powers vested under Article 142 of the Constitution, allowed
the application for divorce by mutual consent filed in the said proceedings, in
order to give a quietus to all litigation pending between the parties. The same
procedure was adopted by this court in the case of Jimmy Sudarshan Purohit v
Sudarshan Sharad Purohit [(2005) 13 SCC 410], where upon a settlement arrived
at between the parties, a joint petition was filed under Section 13B of the
Hindu Marriage Act and the same was allowed in exercise of powers under Article
142 of the Constitution.

“The various decisions referred to above were considered in
some detail in the case of Sanghamitra Ghosh v Kajal Kumar Ghosh [(2007) 2 SCC
220], and the view taken in the various cases was reiterated based on the
doctrine of irretrievable break-down of marriage.

“Although the decision rendered in Sureshta Devi (supra) was
referred to in the decision rendered in Ashok Hurra’s case (supra) and it was
observed therein that the said decision possibly required reconsideration in an
appropriate case, none of the other cases has dealt with the question which
arose in Sureshta Devi’s case (supra), namely, whether in a proceeding under
Section 13B of the Hindu Marriage Act, consent of the parties was required to
subsist till a final decree was passed on the petition.

“In all subsequent cases, the Supreme Court invoked its
extraordinary powers under Article 142 of the Constitution of India in order to
do complete justice to the parties when faced with a situation where the
marriage-ties had completely broken and there was no possibility whatsoever of
the spouses coming together again. In such a situation, the court felt that it
would be a travesty of justice to continue with the marriage ties. It may,
however, be indicated that in some of the High Courts, which do not possess the
powers vested in the Supreme Court under Article 142 of the Constitution, this
question had arisen and it was held in most of the cases that despite the fact
that the marriage had broken down irretrievably, the same was not a ground for
granting a decree of divorce either under Section 13 or Section 13B of the
Hindu Marriage Act, 1955.

“In the ultimate analysis the aforesaid discussion throws up
two propositions. The first proposition is that although irretrievable
break-down of marriage is not one of the grounds indicated whether under
Sections 13 or 13B of the Hindu Marriage Act, 1955, for grant of divorce, the
said doctrine can be applied to a proceeding under either of the said two
provisions only where the proceedings are before the Supreme Court.

“In exercise of its extraordinary powers under Article 142
of the Constitution the Supreme Court can grant relief to the parties without
even waiting for the statutory period of six months stipulated in Section 13B
of the aforesaid Act. This doctrine of irretrievable break-down of marriage is
not available even to the High Courts which do not have powers similar to those
exercised by the Supreme Court under Article 142 of the Constitution. Neither
the civil courts nor even the High Courts can, therefore, pass orders before
the periods prescribed under the relevant provisions of the Act or on grounds
not provided for in Section 13 and 13B of the Hindu Marriage Act, 1955.   

“The second proposition is that although the Supreme Court
can, in extraordinary powers under Article 142 of the Constitution, convert a
proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under
Section 13B and pass a decree for mutual divorce, without waiting for the
statutory period of six months, none of the other courts can exercise such
powers. The other courts are not competent to pass a decree for mutual divorce
if one of the consenting parties withdraws his/her consent before the decree is
passed. Under the existing laws, the consent given by the parties at the time
of filing of the joint petition for divorce by mutual consent has to subsist
till the second stage when the petition comes up for orders and a decree for divorce
is finally passed and it is only the Supreme Court, which, in exercise of its
extraordinary powers under Article 142 of the Constitution, can pass orders to
do complete justice to the parties.

“The various decisions referred to above merely indicate that
the Supreme Court can in special circumstances pass appropriate orders to do
justice to the parties in a given situation by invoking its powers under
Article 142 of the Constitution, but in normal circumstances the provisions of
the statute have to be given effect to. The law as explained in Smt. Sureshta
Devi’s case (supra) still holds good, though with certain variations as far as
the Supreme Court is concerned and that too in the light of Article 142 of the
Constitution.”

There has been a contrary view too. In the case Manish Goel
v Rohini Goel, the apex court (order written by Justice BS Chauhan) took the
view that given the fact that the six month waiting period was provided for
reconciliation, the substantive provisions of law should not be totally ignored
by the court while exercising its powers under Article 142. But it is a settled
principle of law that Constitutional powers are superior and can be used to
override statutory provisions in extreme cases where “complete justice” is
needed to be dispensed. The Supreme Court has been using this power under
Article 142 sparingly when the cases come up before it as transfer petitions
and the parties have amicably settled various issues during the pendency of the
case or if the court finds that the marriage has broken down irretrievably and
there is no scope of rapprochement between the parties.

The writer is Editor-in-Chief of www.indiacommentary.com.

Sunil Garodia