Parties: Appellant- Amardeep Singh
Respondent- Harveen Kaur
Bench: Justice Adarsh Kumar Goel
Justice U. U.lalit
Introduction: Amardeep Singh v/s Harveen Kaur is a basic precedent decision in the case of divorce by mutual consent that it is required to take 6 months of cooling period after filing the case of Divorce under Section 13(B)(2) of Hindu Marriage Act for getting a decree of divorce is mandatory or can be relaxable?
The background of case: The Supreme Court decided this case on 12th September, 2017. In this case husband and wife mutually file a case for divorce.
Facts of the case:
- Marriage of appellant and respondent occurred on 16th January, 1994 at Delhi. Out of the legal wedlock of both the parties they have 2 children which are born in 1995 and 2003 respectively.
- Since 2008 both the parties living separately. There are a lot of disputes between both the parties, because of this disputes there were arising of civil as well as criminal proceeding between the parties.
- But after a long continuous of disputes between the parties finally there were settlement done between the parties and they agreed for getting divorce by mutual consent.
- Between there settlement there were agreement that the respondent wife is to be given permanent alimony of Rs. 2.75 Crore.
- In the family court (West), Tis Hazari court, New Delhi under HMA NO. 1059 of 2017 and on 8th May, 2017 statements were recorded of both the parties.
- And also appellant handed over 2 cheques of 50, 00,000 and both were dishonored.
- And the custody of both the children was with the appellant.
- Both the parties sought the waiver of 6 months period, and in this context their main argument was that both the parties were living separately for more than 8 years and now it is not possible for both the parties to live together.
- If the court gave them order to accept the period of 6 months after filling the case and before getting decree for divorce that thing may be affect their settlement.
Reliance taken in this case: The main reliance taken in this case is decision of Supreme Court in the case of Nikhil Kumar v/s Rupali Kumar. And in this case the Supreme Court waived the period of 6 months and granted the order of dissolution of marriage under Article 142.
What section 13(B) talks about: According to section 13(B)(1) a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of this act. On the ground that both the parties are living separately for a period more than 1 year, and they have not able to live together and they have mutually agreed that marriage should be dissolved.
According to section 13(B) (2) on the motion of both the parties made no earlier than 6 months after the date of the presentation of the parties referred to in sub section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties, and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
- By the appellant that waiting period is discretionary and not mandatory and this period can b waived off under certain circumstances.
- In the case of Nikhil Kumar v/s Rupali Kumar the Supreme Court waived the waiting period.
- Section 13(B) (2) is mainly procedural in nature because section 13(B) (1) already put condition that if the party living separately fr more then 1 year in that type of cases only mutual divorce can be filled.
- The court held that the Supreme Court has power to waive the waiting period of 6 months.
- The period of 6 months which is provided under section 13 (B)(2) and also a period of 1 year which is provided under section 13(B) (1) for moving the petition for divorce under Hindu Marriage Act was already over before filing the petition.
- Both the parties already used the options of mediation an concealing for saving their marriage but both the options failed.
- Also the issue of custody and alimony was solved by both the parties.
- If the waiting period given to parties, so that would hindrance in the resettlement of both the parties.
- And it also marked by the court that application for waiving of cooling period is filled within the one week after filling the petition for divorce by mutual consent.
- So after seeing all the factors the Supreme Court allowed to waive the cooling period.
What are the questions considered for waiving the cooling period?
- How long parties have been married?
- How long litigation is pending?
- How long they have been staying apart?
- Are there any other proceedings between the parties?
- Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
After considering all these aspects of court thinks fit they can passed order of waiving the cooling period.