DIVORCE BY MUTUAL CONSENT –
RELAXATION OF WAIVER PERIOD
Amardeep Singh
v.
Harueen Kaur
AIR 2017 SC 4417: 2017 (8) SCC 746:
2017 (11) SCALE 258: 2017 (180) AIC 192
Decided on: 12-09-2017
Hon’bk Judges: Adarsh Kumar Goel and Uday Umesh Lalit, JJ.
Facts: Marriage was solemnized between the parties at Delhi in 1994. After the marriage, the parties lived and cohabited together as husband and wife and out of th7e said wedlock two children were born. Since 2008 the parties have been living separately.
Disputes arise between parties giving rise to civil and criminal proceedings. Settlement arrived in 2017 to resolve all disputes and divorce by mutual consent. Rs. 2.75 crore to be given to the respondent wife as in the nature of Permanent Alimony. Two cheques of Rs. 50 lacs each handed over by husband, duly honored towards part payment of permanent alimony. Appellant sought to waive of 6 months period for second motion on ground that they have been living separately for the last 8 years and no possibility of their reunion and any delay will affect their chances of resettlement.
Issue: In a matter of divorce by mutual consent, the minimum period of 6 months stipulated under section 13B(2) of Hindu Marriage Act can be relaxed.
Held: Section 13B(2) is not mandatory but directory. Courts can exercise discretion in facts and circumstances of each case where there is no possibility of parties resuming cohabitation and chances of alternative rehabilitation. Waiver application can be filed one week after the first motion giving reasons for prayer for waiver. Waiver of waiting period for second motion will be at the discretion of concerned court, where statutory period of 6 months under section 13B (2) in addition to statutory period of 1 year under section 13B(1) of separation of parties is already over before 1st motion itself. All efforts for mediation to reunite parties have failed and no likelihood of success in that direction by any further efforts, parties genuinely settled their differences including alimony, waiting period will only prolong [heir agony, if these conditions are satisfied.
