Divorce by consent before waiting period:SC refers it to bench

 May 30, 2010

Following some of its own conflicting judgements, the Supreme Court has referred to a three-judge bench a crucial question on whether couples can be granted "divorce by mutual consent" before the mandatory waiting period of six months.

A bench of Justices D K Jain and C K Prasad said it was necessary to have a "clear ruling" on the issue as there had been conflicting decisions by different benches of the apex court on the issue.

The reference came in a divorce dispute in which a man named Rakesh Malviya agreed to pay Rs 65 lakh to his estranged wife Neeti after the couple agreed to a divorce under "mutual consent". But they had to fulfil the condition of six months mandatory period before getting the divorce decree.

Sub-section (1) of Section 13-B of the Hindu Marriages Act provides for dissolution of marriage on mutual grounds, if the couple have been living separately for a period of one year or above.

Under the provision, once the petition for divorce under "mutual consent" was filed, the parties have to wait for a six months period before another application is moved jointly for getting the decree of divorce.

In the Anjana Kishore Vs Puneet Kishore case, a three-judge bench of the apex court waived off the six month period for granting the decree of divorce by exercising its extraordinary powers under Article 142 of the Constitution.

Article 142 empowers the Supreme Court to pass any order or judgement for rendering justice to individuals and others.

Thereafter, a number of high courts and even matrimonial courts started granting divorce decrees without waiting for the mandatory period.

Subsequently, in the Anil Kumar Jain vs Maya Jain case, another three-judge bench opined that only the Supreme Court has the power to waive off the six month period and not the high courts, much less the matrimonial courts.

However, in the Manish Goel and Poonam case, another three-judge bench held that even the Supreme Court cannot waive off the six months period under Article 142 as the power cannot be exercised in contravention of the statutory provisions provided under section 13-B(2).

"Under Article 142 of the Constitution, this court cannot altogether ignore the substantive provisions of the statute and pass orders concerning an issue which can be settled only through a mechanism prescribed by a statute," the bench had ruled at that time.

In view of the conflicting judgements, the two-judge bench referred "the matter to a bench of three judges in order to have a clear ruling on the issue for future guidance."