Waving of Waiting Period in section 13B of Hindu Marriage Act by Supreme Court

22 Feb 2018

Conflicting Judgments for waving six months waiting period under Section 13B of Hindu Marriage Act.

There have been many judgments emitting different opinions, in the case of Dhiren Harilal Garasia V/s [email protected] Mina Chamanlal Dangi[1]  Hon’ble Court held that in fit cases a decree for divorce by mutual consent  can be granted even though the subsection is not strictly complied with but cautiously, in another judgment of Amardeep Singh V/s Harveen Kaur[2]many case laws were discussed and relied upon in order to issue judgment in favor of complete justice regarding waving of the statutory period in Section 13B of Hindu Marriage Act 1955.  NikhilKumar V/s Rupali Kumar,[3]the Court waived the six months statutory period under Article 142 of Constitution thereby ordering the dissolution of marriage. On the other hand contrary in the judgment of Manish Goel V/s Rohini Goel[4]   the court held that the jurisdiction of the Court under Article 142 could not be used to waive the statutory period of six months, the Court observed:

Generally, no court has competence to issue a direction contrary to neither law nor can the court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.

 

In Prem Chand Garg V/s Excise Commr.[5] It was held as An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution,but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.

 

This above view was noted by the Court in mentioned case of Amardeep Singh V/s Harveen Kaur that the Power under 142 had been exercised in cases where the Court found marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. In the case of Romesh Chander V/s Savitri[6]  this power was also exercised to put quietus to all the litigations and to save the parties from further agony, and the same view was reiterated in Poonam V/s Sumit Tanwar[7].

 

 

 

 

 

 



[1] 1987(2) GLH 291

[2] CA No. 11158 of 2017

[3] (2016) 13 SCC 383

[4] (2010) 4 SCC 393

[5] AIR1963 1002

[6] (1995) 2 SCC 7

[7] (2010) 4 SCC 460


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