Devinder Singh Narula vs Meenakshi Nangia (SC) (Civil Appeal No. 5946 Of 2012)
3. The Section (13B of HMA) itself provides for a cooling period of six 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 the 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 moved, and at that point of time, if the parties have made up their minds that they would be unable to live together, the Court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
4. Aggrieved by the said order of the learned Additional District Judge, fixing the date of the 2 nd motion after six months, the petitioner has moved this Court by way of this appeal, relying on a decision of this Court in Anil Kumar Jain vs. Maya Jain [(2009) 10 SCC 415], whereby after arriving at a conclusion that the marriage between the parties had broken down irretrievably, this Court felt justified to invoke its powers under Article 142 of the Constitution.
5. On behalf of both the parties it was urged that since more than 18 months had elapsed since the original petition under Section 13 of the Hindu Marriage Act, 1955, have been filed, the said period could be counted towards the cooling period of six months stipulated under Section 13-B of the above Act. It was urged that by such reckoning the parties have already completed the waiting period of six months, as envisaged under Section 13-B of the Act.
6. It was also urged that the other conditions contained in Section 13-B(1) of the Act had also been satisfied as the parties had been living separately for more than a year and had mutually agreed that the marriage should be dissolved. It was urged that except for the formality of not having made an application under Section 13-B, the other criteria had been duly fulfilled and having regard to the language of Section 13-B, a decree of dissolution of the marriage by way of mutual divorce should not be denied to the parties, since four months out of waiting period of six months contemplated under Section 13-B had already been completed.
7. It was contended that as was done in the case of Anil Kumar Jain (supra), this Court could invoke its powers under Article 142 of the Constitution in the best interest of the parties. It was urged that technicality should be tampered by pragmatism, if substantive justice was to be done to the parties.
8. On behalf of the State it was submitted that in view of the statutory provisions, the prayer being made on behalf of the petitioner and the respondent wife should not be entertained as that would lead to confusion in the minds of the public and would be against the public interest.
9. We have carefully considered the submissions made on behalf of the parties and have also considered our decision in Anil Kumar Jain’s case (supra). It is no doubt true that the Legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. It is also true that the intention of the Legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation. In fact, in the case of Kiran vs. Sharad Dutt [(2000) 10 SCC 243], which was considered in Anil Kumar Jain’s case, after living separately for many years and 11 years after initiating proceedings under Section 13 of the Hindu Marriage Act, the parties filed a joint application before this Court for leave to amend the divorce petition and to convert the same into a proceeding under Section 13-B of the Act. Treating the petition as one under Section 13-B of the aforesaid Act, this Court by invoking its powers under Article 142 of the Constitution, granted a decree of mutual divorce at the stage of the SLP itself. In different cases in different situations, this Court had invoked its powers under Article 142 of the Constitution in order to do complete justice between the parties.
12. It is quite clear from the materials on record that although the marriage between the parties was solemnized on 26.3.2011, within 3 months of the marriage the petitioner filed a petition under Section 12 of the Hindu Marriage Act, 1955, for a decree of nullity of the marriage. Thereafter, they have not been able to live together and lived separately for more than 1 year. In effect, there appears 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 is keeping the formal ties of marriage between the parties subsisting in name only. At least the condition indicated in Section 13-B for grant of a decree of dissolution of marriage by the mutual consent is present in the instant case. It is only on account of the statutory cooling period of six months that the parties have to wait for a decree of dissolution of marriage to be passed.
13. In the above circumstances, in our view, this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution. The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months.
14. We, accordingly, allow the appeal and also convert 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 of the aforesaid Act and by invoking our powers under Article 142 of the Constitution, we grant a decree of mutual divorce to the parties and direct that the marriage between the parties shall stand dissolved by mutual consent. The proceedings before the Additional District Judge-01, West Delhi, being HMA No.204 of 2012, is withdrawn to this Court on consent of the parties and disposed of by this order.