CASE ANALYSIS - AMARDEEP SINGH V. HARVEEN KAUR

Authors:

Shrey Goyal, NLUJAA

Riya Chadha, FIMT, IPU

Kavya M., School of Excellence, Chennai

Editor: Meghaa G, TNNLU




Introduction

The Hindu Marriage Act, 1955 is a landmark legislation in Indian legal history for Hindus. It provides comprehensive guidance for orderly and systematized Hindu marriages. Consequentially, the concept of divorce was first introduced in the Hindu Marriage Act, 1955[1]. Divorce, or the legal splitting of two spouses has always been a divisive subject in Indian law. Due to a prevalence of societal taboos and norms related to this issue, it has always remained an underutilised legal path, because of a variety of reasons. The religious and social undertones to a marriage in India, or more relevantly, to a Hindu marriage, have always been controversial and non-progressive, to say the least. However, the case at hand describes a couple wishing to ease the process of divorce.

Case Facts:

Amardeep Singh (Appellant) and Harveen Kaur (Respondent) were married on 16th January, 1994 at Delhi, with two children. Since 2008, both the parties lived separately due to marital disagreements leading to civil and criminal proceedings.

By 28th April, 2017, they came to a settlement to resolve the dispute between them by seeking divorce by mutual consent under Section 13B (2) of Hindu Marriage Act, 1955 under which the Respondent demanded a permanent alimony of Rs. 2.75 crores. Subsequently, a case was filed before the Family Court, New Delhi and statements were recorded on 8th May, 2017.

Subsequently, the Appellant provided two cheques of Rs. 50, 00,000/- to the Respondent as part of permanent alimony and claiming the custody of the children to be with Appellant. Both the parties waived the period of six months as in Sec 13B (2), as they have been living separately for the past eight months and there will be no possibility to re-join. They claimed that this period of delay will affect the chances of resettlement and hence, the parties moved to Supreme Court demanding relaxation of six months as per their decisions.

Issue:

Whether the exercise of power under Article 142 of the Constitution[2] to waive the period under Section 13B (2) of theHindu Marriage Act, 1955[3] was mandatory or directory?

Relevant Provisions:

Section 13B. Divorce by Mutual Consent

(1) Subject to the provisions of this Act 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 solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen 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 solemnised 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 the decree.]

The period of 6-18 mos. was decided to provide reasonable opportunity for the couple to resolve the disagreements. Further, the term “living separately” also includes husband and wife living under the same roof, provided they don’t have any intentions to perform marital duties.

Article 142- Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

This provision allows extraordinary power to the Supreme Court to pass any decree or order, subject to the provisions of the law, enforceable throughout the territory of India with the objective of ensuring justice

Analysis:

The benefits of a divorce in a situation wherein neither spouse is content or either one spouse is suffering in any way, shape, or form cannot be overstated. The principal piece of legislation for marriage and divorce law in Hindu marriages is The Hindu Marriage Act, 1955. The aforementioned statute was the first recourse provided to people who found themselves in non-productive and insufferable relationships. The Hindu Marriage Act originally provided for divorce on many grounds (enshrined in Section 13 (1) and (2)) such as desertion, presumption of death, adultery, cruelty, conversion, etc. What is however interesting to note is that it was not until The Marriage Laws (Amendment) Act 1976,[4] that the concept of divorce by mutual consent (meaning that both the spouses have mutually agreed on separating) was introduced into Indian law, which was considered a huge leap forward in family law.

As we have previously discussed the present case before the Hon’ble Supreme Court was one of divorce by mutual consent. The same was added to the statute under Section 13B (1) and (2). While 13B (1) deals with the mandatory period of separation and is concerned with the maintainability of the petition and the Court’s jurisdiction (both fundamental to a case being heard in Court), it cannot be put aside. However. 13B (2) provides for the period colloquially known as the “cooling-off period”, i.e. six months that are to be suffered after the filing for divorce to hopefully reconcile and avoid haste in divorce. This provision has itself been under scrutiny over the years and in certain “exceptional cases” the Apex Court has set this provision aside, in lieu of Article 142 of the Constitution of India, which gives the Supreme Court extra ordinary powers to deliver complete and holistic justice. Thus, the debate whether 13B (2) is a mandatory or merely procedural raged on, until this landmark judgment.

Judgment

The Bench decided that the six-month waiving period contained in 13B (2) can be waived off if certain conditions are met:

· the pre-requisite conditions of 13B (1) are wholly met i.e. one year has already been spent apart;

· over and above the one stipulated year, an additional statutory period of six months desired by 13B (2) had also been satisfied before filing for the first motion itself;

· all efforts at mediation and/or reconciliation have failed;

· even the Family Courts have failed to provide a mutually acceptable solution;

· the spouses have in good faith settled all their other differences, including but not limited to alimony, custody of child and so on; and

· the waiting period will only prolong the parties’ duress and agony.

In an unprecedented and sustainable move, the Justices also provided the option for video-conferencing and/or representation by a close relation in genuine cases of non-appearance in such proceedings. This step was taken to benefit Non-Resident Indians (NRIs) and similarly disadvantaged groups.

Conclusion:

Notably, since this ruling, there have been a few cases wherein the couple filing for divorce achieved the same without any “cooling-off period.” This shows the Apex court is willing to stand by this precedent set out by Amardeep Singh v. Harveen Kaur.

A few interesting examples are the October 2018 case comprising of a Bench of Justices Kurian Joseph and S.K. Kaul who waived this waiting period to let the spouses part ways “as friends”. A more recent ruling in May 2019 by HC Justice Prateek Jalan who posits, “A holistic reading of the [Supreme] Court’s [2017] judgment leads instead to the conclusion that purposeless marriage which has no chance of reunion ought not to be prolonged.

There have been a few more such cases in 2020 as well, proving that the once rare and remote, possibility for a “speedy divorce” has become increasingly real, given that the necessary prerequisites are met. This has definitely been a step in a more progressive direction and aims to not purposelessly prolong marriages where there is no hope for reconciliation.

[1] The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India). [2] INDIA CONST. art. 142. [3] Section 13, The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India). [4] The Marriage Laws (Amendment) Act, 1976, No. 209, Acts of Parliament, 1976 (India).


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