Section 13B of Hindu Marriage Act talks about two time periods for the couple who intends to present a petition for mutual consent divorce:
- One year of living seperately before presentation
- 6 months cooling off period after presentation
No petition for divorce to be presented within one year of marriage.—(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one one year has elapsed since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.
The question is whether the proviso to Section 14 can be invoked to waive one year stipulation under Section 13B(1)?
The Supreme Court in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, issued some guidelines for waiving off six months cooling off period (this is in the context of Section 13B Hindu Marriage Act). Though this question was not directly considered by the Apex Court, it held that, one of the condition to waive the cooling off period is this: The statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year Section 13-B(1) of separation of parties is already over before the first motion itself. This, in a way, means that the Apex Court treated the one year seperation period as mandatory.
Delhi High Court
In Sankalp Singh vs Prarthana Chandra, [ 2013 (135) DRJ 487 (DB) ] the couple filed a petition under Section 13B (1) along with that petition filed an application under Section 14 praying for waiver of the period of one (1) year of separation for filing the petition. The Family Court dismissed the petition and thus they approached the Delhi High Court. Allowing the appeal, the High Court observed: A more liberal construction can envisage the application of the proviso to Section 14 (1) of the said Act without compromising on the essential ingredients of Section 13B (1) of the said Act. This is possible by ensuring that none of the three essential ingredients are compromised. Thus, parties should have been living separately for one (1) year or more, that they have not been able to live together and have mutually agreed that the marriage should be dissolved. However, the dissolution of marriage has to take effect only after the hiatus period of six (6) to eighteen (18) months, on the second motion being filed. Thus, before such a decree of divorce is passed post second motion the period of one (1) year of separation ought to have elapsed but in order to present the first motion, the requirement of one (1) year separation would not apply provided it meets the parameters of proviso to Section 14 (1) of the said Act. This view would not compromise on the essential ingredients of any part of Section 13B of the said Act and simultaneously respect the wisdom of the legislature which enacted Section 13B of the said Act and incorporated it by insertion with sub-section (1) beginning with “Subject to the provisions of this Act” which would include Section 14. Not only that Section 14 of the said Act itself begins with a “Notwithstanding” clause. This would, thus, be the harmonious construction of the provisions of the said Act which would enable to give meaning to all the relevant provisions of the said Act without compromising the ingredients of any. Such a course of action is possible especially because there will not be a waiver of minimum six (6) months hiatus period between the grant of first motion and the second motion being presented with the additional condition under Section 13B (1) of the said Act that even if the first motion is presented within the first year of marriage as per the satisfaction of proviso to Section 14 (1) of the said Act, the decree of divorce would only be granted once the period of one (1) year has elapsed from the separation.” [ Followed in “Rishu Aggarwal vs. Mohit Goyal, 2022 SCC Online Del 1089 ]
Punjab and Haryana High Court
The Punjab and Haryana High Court in Mandeep Kaur Bajwa vs. Charanjeet Singh Randhawa, 2015 (40) RCR (Civil) 198, agreed with the above view of Delhi High Court in Sankalp Singh. [ A recent judgment of the High Court followed this view.]
Allahabad High Court
The Division Bench of the High Court of Allahabad in Arpit Garg v. Ayushi Jaiswal, 2019 SCC Online All 5521, disagreed with the decision in Sankalp Singh (Supra). It observed thus: The time period stipulated by the legislature as provided under Section 13B has been so fixed that during this time, the parties get time for introspection. The period prescribed under Section 13-B(1) of the Act is mandatory and cannot be waived. The language of the statue is clear and plain, admitting no ambiguity, and therefore assigned the plain meaning which naturally flows from the reading thereof and leads to a singular construction. The language of the Section 13-B(1) is clear and do not speak of any discretion to be used by the courts for curtailing the limit. The proviso to Section 14 of the Act is intended to mollify the effect of one year limitation when the divorce is sought under “Section 13” of the Act.
Madhya Pradesh High Court
According to Madhya Pradesh High Court, the condition of living separately for one year is not directory but mandatory and the requirement of law stated under Section 13B(1) should be satisfied before the Court gives any relief. “As per Section 14 of the Act is concerned, it provides for the time frame for the presentation of divorce petition and does not lay down an ingredient for granting the decree of divorce. The proviso of Section 14 of the Act which provides for the presentation of petition even before the lapse of a period of one year cannot be read into the provision of Section 13B(1), as both are independent of each other. Therefore, having considered the facts of the case and law as referred above, we are of the view that the period of one year of living in separation is a must to the filing of the petition under Section 13B(1) and waiver of this period is not permissible under Section 14 of the Act. 18. The Court gets the jurisdiction to entertain and decide the petition for divorce by mutual consent only after the ingredients under Section 13B(1) of the Act are satisfied. Therefore, we are of the view that the mandate envisaged under Section 13B(1) of the Act providing a period of one year separation before the presentation of the petition to seek divorce by way of mutual consent cannot be waived under proviso of Section 14 of the Act either on the application of the parties or suo motu by the Court, as separation of one year is prerequisite for invoking Section 13B(1) of the Act.”, the court noted in Vishal Kushwaha vs Raghini Kushwaha (2022)
Kerala High Court
Section 10A of Divorce Act (applicable to Christians) provided two years seperation to present a petition for mutual consent divorce. The same was read down to ‘one year’ by the High Court in Saumya Ann Thomas v. Union of India ]. Recently, in Anup Disalva v. Union of India [ 2022 (6) KLT 902 :: 2022 (4) KLJ 1012 :: 2022 (7) KHC 532 :: 2022 LiveLaw (Ker) 640 ], the High Court held that the stipulation of the one-year period or more for the purpose of filing a divorce petition by mutual consent under Section 10A is violative of fundamental right and thus unconstitutional. The judgment is on the premise that “Section 29 of the Special Marriage Act and Section 14 of the Hindu Marriage Act, enabled the Courts to entertain the the petition to be presented before one year had lapsed from the date of marriage and there is no corresponding provision in the Divorce Act for the Court to permit the dissolution of marriage by mutual consent until the mandatory period of one year has lapsed from the date of separation.” The issue framed was whether in the absence of any provisions allowing the parties to a marriage to move the Court before the lapse of one year from the date of marriage or the date of separation, can the provision stand the test of constitutional scrutiny? According to the High Court, the mandate of Section 10A(1) will become oppressive if the parties are not given the option to highlight hardships and exceptional hardships they may experience during the waiting period. The legislature in other statutes, having felt the need for relaxation, to redress exceptional circumstances through judicial remedy, cannot remain in oblivion when concerning the Christian community, the High Court observed.
So, if the stipulation of one year period of seperation under Divorce Act is unconstitutional, what about similar stipulation in Section 13B HMA and Section 28 SMA? If Section 14 HMA / Section 29 SMA cannot be applied to mutual consent divorce under Section 13B HMA/ Section 28 HMA, will it also be unconstitutional?