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Monday, 16 May 2016

Case comment - Soni kumari vs. Deepak kumar

In India marriage is a sacrament. It is a relation between two souls.  But due to certain reasons best known to the husband and wife, if marriage tie cannot continued, the legislature thought it better to break down the marriage tie, if it is in the interest of both of them by mutual consent. Under the Hindu Marriage Act,1955 divorce by mutual consent is allowed but statutory period of six months has to be observed. In this case waiver in six months period was required by the parties.

In this case, the appellant wife and the respondent were married as per Hindu rites and ceremonies in 2009. Due to temperamental differences, trouble arose in their marriage and the parties started living separately since February, 2014. Subsequently they filed a mutual divorce petition under section 13-B (1) of the Hindu Marriage Act, 1955 in Saket District Court, Delhi. The Court allowed the first motion on mutually agreed terms but rejected the prayer of the parties for waiver of the statutory period of six months before the second motion could be filed. Therefore, on the question of waiver of the six month period, the matter reached the apex court. The waiver was desired because the respondent husband was to leave India owing to his professional obligations. The tickets for the journey were confirmed and it would not have been possible for him to return within a period of one to two years. This, therefore , would have jeopardized the divorced proceedings by causing the first motion to lapse.

The court noted with approval the proceedings in the court below. The only issue that remained to be answered was as to whether it was a fit case for the court to exercise its power under article 142 of the Constitution of India. The court relied on Vimi Vinod Chopra v. Vinod Gulshan Chopra (2013) 15 SCC 547 wherein it was observed that using the power under article 142 would be a prudent way to end multiple disputes between the parties and ensure complete justice. Further, court also took note of Devinder Singh Narulla v. Meenakshi Nangia (2012) 8 SCC 580, wherein it was observed: We have carefully considered the submissions made on behalf of the parties and have also considered our decision in Anil Kumar Jain case (2009) 10 SCC 415. 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. 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. After referring to the above cases, the apex court drew two conclusions. First, it opined that irretrievable breakdown of marriage is not a specified ground for divorce under the Hindu Marriage Act, 1955. Nevertheless the apex court may invoke the same in cases before it when it comes to exercise of power under article 142 of the Constitution and thereupon the court can waive the statutory period of six months stipulated in section 13-B of the Act of 1955. But this power of waiver is only available to the Supreme Court and not to any of the courts below. Secondly, this power under article 142 can be used even to convert a proceeding under section 13 of the Hindu Marriage Act, 1955, into proceeding under section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months. However, other courts cannot exercise this power.

Under normal circumstances, the parties have to wait for a six month period between the two motions for mutual divorce and their free consent to part ways amicably and on mutually agreeable terms has to subsist for the whole of the period. This period can also serve as a period of introspection and for making attempts at reconciliation. However, the apex court can, under suitable circumstances, waive off this period of six months as well. Based on these considerations the Apex court found it a fit case for exercising its power under article 142 and allowed the appeal by waiving the six month period. It must be stated that marriage is no doubt a sacred institution to be preserved by all means but it should not lead to suffering and loss of an individual’s happiness. Such a union can neither be in the interest of children nor of the spouses.

In this regard, Cheshire says, Geoffrey C. Cheshire observes...Divorce since it distinguishes the family unity, is of course, a social evil in itself , but it is a necessary evil, it’s better to wreck the unity of family than to wreck the future happiness of parties by binding them to companionship that has become odious. Membership of a family founded on antagonism can bring little profit even to the children. (G.C.Cheshire, “The International Validity of Divorces,” 61 Law Quarterly Review, 352 (1945).

Ending such loveless, soul-less and tragic unions is in the best interests of the concerned individuals and the society. There may be cases where the hope of reunion or reconciliation or of matters cooling off can be so low that it is best to waive off the statutory period of six months by using the extraordinary power given to Supreme Court. There can be cases where parties have been living separately for long periods or cases involving extraordinary levels of physical or mental cruelty or other cases which warrant use of such power. It must be noted however that this power ought not to be on a regular basis so as to nullify the express wish of the legislature as expressed in the statue. Also, perhaps the legislature should look at grounds realities and work on a suitable amendment.

In this judgement the Apex Court has rightly expressed that judiciary cannot go against the express will of the legislature, but it can mould the law in the exceptional social situations in the best interest of the society.        

Dr. Hari Mohan Mittal,
Professor - School of Law


  1. Good Thought Hari.

    Still there are some unethical practices followed in South India, in the name of customs and traditions which needs to be stopped.

  2. Nice post thank you so much for sharing this great information.

  3. Nice topic It was covered, And I heard it was nice college, one of my brothers child is studying here. i also planing to join my child here.

    Best regards,

  4. Good post Hari. Thanks for sharing