Supreme Court can grant mutual consent divorce under Article 142 

Shivendra Pratap Singh

Advocate

High Court Lucknow

Article

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The Supreme Court has the power to grant a mutual consent divorce under Article 142 of the Indian Constitution. Article 142 grants the Supreme Court the authority to pass any order or decree necessary for the sake of complete justice. This means that the Supreme Court can use its discretionary powers under Article 142 to grant a divorce by mutual consent, even in situations where the parties may not fulfill the specific procedural requirements laid down by law. The court can exercise this power to ensure that justice is served and the parties are not unduly burdened by procedural technicalities when seeking a divorce by mutual consent.

Section 13B of the Hindu Marriage Act, 1955 (HMA), lays down the procedure for divorce by mutual consent of both parties. As part of this procedure, there is a cooling period of 6-18 months that follows the submission of a joint application for divorce. If the application is not withdrawn during this period, the concerned court will proceed with the divorce proceedings and ultimately grant the divorce.

The constitutional bench of the Supreme Court of India in its ruling [Shilpa Shailesh vs Varun Sreenivasan 2023], emphasized the authority conferred upon the Supreme Court (SC) under Article 142, stating that the SC is not bound by the procedural requirements outlined in Section 13B. According to Article 142, the SC has the power to grant the divorce decree even before the cooling period specified by the HMA, even if the main case is pending before a Family Court. Additionally, the SC can also grant divorce on the grounds of ‘irretrievable breakdown’ in the interest of justice, regardless of one party’s opposition.

The Bench acknowledged that the cooling-off period can pose an obstacle in cases where there is an undeniable ‘irretrievable breakdown of marriage,’ meaning that divorce is inevitable. However, they also recognized the importance of the time gap as it allows the parties involved to assess and reconsider their decision to divorce. The period can only be waived when the Court determines that the marriage is beyond repair, signifying that further waiting would be futile.

In assessing whether a marriage has irretrievably broken down, certain factors are taken into consideration. These factors include the duration of cohabitation after marriage, the last time the parties lived together, the nature of allegations made by the parties against each other, attempts made to settle disputes between the parties, and the existence of a sufficiently long period of separation.

Overall, the Bench’s ruling highlights the discretionary powers of the SC under Article 142, enabling the Court to deviate from the procedural requirements prescribed by Section 13B of the HMA. While recognizing the significance of the cooling-off period, the Court stressed that its purpose is to allow parties to reassess their decision, but it can be waived when the marriage is deemed irreparable.

Cooling-off period

Under Section 13B of the Hindu Marriage Act, 1955, divorce by mutual consent involves a specific provision known as the “cooling-off period.” This period acts as a waiting period after the joint application for divorce is filed by both parties. It is intended to provide an opportunity for reconciliation and reflection before finalizing the divorce.

The cooling-off period typically spans from 6 to 18 months, during which the parties are expected to maintain their decision to seek a divorce. If, during this period, either party decides to withdraw the application, the divorce proceedings are halted, and the marriage continues as before. However, if neither party withdraws the application within the cooling-off period, the court proceeds with the divorce proceedings and ultimately grants the divorce.

The rationale behind the cooling-off period is to allow spouses to reconsider their decision and explore the possibility of reconciliation. It is believed that the time gap provides an opportunity for couples to reflect on the consequences of divorce, consider the impact on their families, and potentially resolve their differences through communication, counseling, or other means.

It is important to note that the cooling-off period is a mandatory requirement under Section 13B of the Hindu Marriage Act, and courts typically adhere to this provision while adjudicating divorce cases by mutual consent. The purpose of this provision is to ensure that divorce is not taken lightly and that parties have ample time to reconsider their decision and explore alternatives before legally terminating their marriage.

However, it is worth mentioning that the Supreme Court of India, under its discretionary powers conferred by Article 142 of the Constitution, has the authority to deviate from the procedural requirements, including the cooling-off period, if it deems it necessary in the interest of justice. The Court can exercise its discretion to waive the cooling-off period and grant the divorce decree even before the prescribed time, particularly in cases where there is an irretrievable breakdown of the marriage and further waiting would serve no purpose.

First and Second motion in Divorce by Mutual Consent

In divorce cases by mutual consent, the Hindu Marriage Act, 1955 (Section 13B) provides a specific procedure that couples need to follow. The procedure involves two motions or stages before the divorce decree can be granted.

The first motion involves both parties jointly filing a petition for divorce before the relevant court. They must state their mutual consent to dissolve the marriage and provide reasons for seeking the divorce. Along with the petition, they also need to submit a joint statement confirming their agreement on matters such as child custody, property division, and alimony, if applicable.

Once the first motion is filed, the court will typically provide a cooling-off period of 6-18 months. During this period, the court encourages the couple to reconsider their decision and reconcile, if possible. The purpose of this cooling-off period is to allow time for reflection and to ensure that the decision to divorce is not hasty or impulsive.

If, after the cooling-off period, both parties still wish to proceed with the divorce, they can move on to the second motion. The second motion involves both parties appearing before the court and reconfirming their mutual consent for the divorce. They need to convince the court that their decision to separate is voluntary and not due to any coercion or undue influence.

The court, after hearing both parties and being satisfied with their consent and reasons, may grant the divorce decree. It is important to note that the second motion can only take place after the cooling-off period, and both parties must continue to express their mutual consent throughout the process.

Supreme Court can grant mutual consent divorce before second motion

However, in certain exceptional cases, the Supreme Court of India, exercising its special powers under Article 142 of the Constitution, has the authority to waive the cooling-off period. This means that the Supreme Court can grant the divorce decree before the completion of the cooling-off period, even when the main case is pending before a Family Court. This power is exercised by the Supreme Court in situations where it deems it necessary in the interest of justice and when there is an irretrievable breakdown of the marriage.

Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746

In the present scenario, considering the aforementioned principles, we hold the view that if the court handling a case is convinced that circumstances exist to waive the statutory period mentioned in Section 13-B(2), it has the authority to do so after taking into account the following factors:

  1. The six-month statutory period stipulated in Section 13-B(2), along with the one-year statutory period of separation specified in Section 13-B(1), has already elapsed prior to the first motion.
  2. All attempts at mediation/conciliation, including efforts made in accordance with Order 32-A Rule 3 of the Civil Procedure Code (CPC), Section 23(2) of the Act, or Section 9 of the Family Courts Act, to reconcile the parties, have proved unsuccessful, and there is no likelihood of success in that direction even with further efforts.
  3. The parties have genuinely resolved their differences, including matters related to alimony, child custody, and any other pending issues between them.
  4. The waiting period will only prolong their suffering and distress.

The application for waiver can be filed one week after the first motion, providing reasons for seeking such waiver. If the aforementioned conditions are fulfilled, the decision to waive the waiting period for the second motion will be at the discretion of the concerned court.

Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

Amit Kumar v. Suman Beniwal, 2021 SCC Online SC 1270

The Supreme Court has held that “It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity. In Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 747], this Court held that the statutory waiting period of at least six months mentioned in Section 13B(2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to the Court to exercise its discretion to waive the requirement of Section 13B(2), having regard to the facts and circumstances of the case, if there was no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony.

For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B(2) of the Hindu Marriage Act, the Court would consider the following amongst other factors:-

  1. The length of time for which the parties had been married;
  2. How long the parties had stayed together as husband and wife;
  3. The length of time the parties had been staying apart;
  4. The length of time for which the litigation had been pending;
  5. Whether there were any other proceedings between the parties;
  6. Whether there was any possibility of reconciliation;
  7. Whether there were any children born out of the wedlock;
  8. Whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.

Article 142 Constitution of India

Article 142 of the Constitution of India grants the Supreme Court certain special powers. This article empowers the Supreme Court to deliver justice in exceptional cases where existing laws or procedures may be insufficient or inadequate. It provides the court with discretionary authority to pass any order or judgment necessary to do “complete justice” in any “cause or matter” pending before it.

The special power vested in the Supreme Court under Article 142 enables the court to go beyond the limitations of procedural and substantive laws, allowing it to fill gaps or address situations where there may be no specific legal provisions. This provision empowers the court to make orders that are binding and enforceable, even if they may not be within the scope of existing laws or statutes.

The purpose of Article 142 is to ensure that the Supreme Court has the authority to uphold justice, equity, and good conscience, especially in cases where a strict adherence to legal formalities and technicalities may lead to injustice or denial of rights. It grants the court the flexibility to tailor its orders or judgments to suit the specific needs of a particular case, thereby serving the ends of justice.

However, it is important to note that while Article 142 grants the Supreme Court wide-ranging powers, it also expects the court to exercise restraint and responsibility. The court is required to exercise its discretion judiciously and ensure that the exercise of this special power is in line with the fundamental principles of law and justice.

Article 142 of the Constitution of India confers special powers upon the Supreme Court to deliver complete justice in cases where existing laws may be insufficient. It allows the court to go beyond procedural and substantive limitations and make orders necessary to serve the ends of justice. The exercise of this power requires the court to strike a balance between flexibility and responsibility, ensuring that fundamental principles of law are upheld while delivering justice.

Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415

The Supreme Court has held that “It is no doubt true that the legislature had in its wisdom stipulated a cooling off 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.”

The Supreme Court has further held that “In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Section 13 or 13-B 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 13-B of the aforesaid Act.”

Shilpa Shailesh vs Varun Sreenivasan 2023

In Shilpa Shailesh vs Varun Sreenivasan 2023 the hon’ble Supreme Court has held that “view of settlement between the parties, (Supreme Court) has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (2017) 8 SCC 746 and Amit Kumar (2021 SCC Online SC 1270). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.”

In exercise of power under Article 142(1) of the Constitution of India, (Supreme Court) has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.

Is it mandatory to approach the Supreme Court for a waiver of the cooling-off period?

Not necessary to approach the Supreme Court to grant mutual consent divorce. If the marriage has irretrievably broken down and there is no chance of reconciling the marital relationship, the parties have the option to file a civil suit under Section 13B of the Hindu Marriage Act, 1955, for divorce by mutual consent. According to the guidelines established in the case of Amardeep Singh vs Harveen Kaur (2017) 8 SCC 746, the parties should file the suit and then submit an application after seven days from the date of filing to waive the cooling-off period. This request can be made on the grounds that the marriage is irretrievable, the parties have been living apart for more than eighteen months, there is no possibility of reconciliation, and all differences regarding the alimony, child custody, pending cases etc. have been mutually resolved.