Malviya Vs. Rakesh Malviya  INSC 418 (12 May 2010)
SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION TRANSFER PETITION (C) No.899
OF 2007 Neeti Malviya ... Petitioner VERSUS Rakesh Malviya ... Respondent ORDER
This transfer petition has been filed by the petitioner-wife, seeking transfer
of the Divorce Petition M.C. No.2168 of 2006 titled as Rakesh court of
Additional Principal Judge, Family Court, Bangalore (Karnataka) to the Family
Court, Hoshangabad (Madhya Pradesh).
issuance of notice on 7th December 2007, efforts were made on various occasions
to bring about a comprehensive settlement of the matrimonial discord between
the parties. On 6th September 2008, the parties agreed for mediation.
Accordingly, the parties were referred to the Delhi High Court Mediation
Centre. Ultimately, in proceedings 2 before the Supreme Court Lok Adalat held
on 25th April 2009, it was reported that the parties had arrived at a
settlement. The settlement agreement dated 24th April 2009 was taken on record.
The relevant portion of the order passed on 25th April 2009 is extracted below:
of the terms so agreed upon is that the husband is to pay to the wife an amount
of Rupees sixty five lakhs on or before 28th February, 2010. It is now agreed
before us that the said amount of Rupees sixty five lakhs shall be deposited in
this Court as per the schedule of dates mentioned in the agreement.
amount, so deposited, shall be put in a Fixed Deposit Receipt for a period upto
1st May, 2010.
..... ..... .....
also agreed that when full amount in terms of the agreement is deposited, the
parties shall, immediately thereafter, move a joint application for grant of
divorce by mutual consent. On the passing of the decree for divorce, the amount
deposited in this Court shall be released to Neeti without any delay."
matter remained pending for some time but the parties continued to discharge
their obligations under the terms of settlement and when the case came up for
hearing on 29th January 2010, it was stated that the respondent-husband shall
deposit the last installment of money, in terms of the settlement, by 28th
February 2009, which was done. However, when the matter came up for final
orders on 10th May 2010, learned counsel for the parties sought time to go
through the two judgments of 1 2010 (2) SCALE 332 3 Sumit Tanwar2, and assist
the Court on the question whether the period of second motion in terms of
sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 (for short
"the Act") can be waived or reduced by this Court.
have heard learned counsel for both the parties.
Sub-section (1) of Section 13-B of the Act is the enabling Section for
presenting a petition for dissolution of marriage by a decree of divorce by
mutual consent, on the ground that the parties 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.
Sub-section (2) of Section 13-B of the Act provides the procedural steps that
are required to be taken once the petition for divorce by mutual consent has
been filed and six months have expired from the date of presentation of the
petition before the Court. The language of sub-section (2) is unambiguous and
provides that on the motion of both the parties made no 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, 2 JT 2010
(3) SC 259 4 pass a decree of divorce declaring the marriage to be dissolved
with effect from the date of the decree.
already stated, the language of the said provision is clear and prima facie
admits of no departure from the time frame laid down therein, i.e. the second
motion under the said sub-section cannot be made earlier than six months after
the date of presentation of the petition under sub- section (1) of Section 13-B
of the Act.
question with which we are concerned in the present petition is whether in view
of the settlement arrived at between the parties, a decree of divorce by mutual
consent can be granted by this Court without waiting for the statutory period
of six months in terms of Section 13-B(2) of the Act. In other words, the
question for consideration is whether or not this Court can reduce or waive of
the statutory period of six months, as stipulated in the said provision?
8. At the
outset, we may note that in several cases this Court has been invoking its
extraordinary powers under Article 142 of the Constitution of India and passing
a decree of divorce by mutual consent without waiting for the statutory period
of six months to expire. As a matter of fact, even the family courts in some
States, following the ratio of the decisions or the directions by their
respective High Courts, have been reducing the period of second motion when
they were convinced that 5 there was no possibility whatsoever of the spouses
coming back together again and granting decree of divorce by mutual consent in
terms of the settlement arrived at between the parties in order to give quietus
to all the litigations pending between them.
this Court, while hearing a transfer petition, invoked its jurisdiction under
Article 142 of the Constitution and directed the parties to file a joint
petition before the family court under Section 13-B of the Act, for grant of
decree of divorce by mutual consent, along with a copy of the terms of
compromise arrived at between the parties. The Court further permitted the
family court to consider dispensing with the need of waiting for expiry of a
period of six months as required by sub- section (2) of Section 13-B of the Act
and pass final orders on the petition within such time as it deems fit.
issue with regard to the jurisdiction of the High Court and the matrimonial
court to reduce or waive of the period of second motion in terms of sub-section
(2) of Section 13-B of the Act fell for consideration context. Taking note of a
number of earlier cases where decree of divorce by mutual consent had been
granted by this Court without 3 (2002) 10 SCC 194 4 (2009) 10 SCC 415 6 waiting
for the expiry of statutory period of six months, it was held that neither the
civil courts nor even the High Courts can pass orders before the period
prescribed in Section 13-B(2) of the Act has expired. The Court opined that it
is only this Court, in exercise of its extraordinary powers under Article 142
of the Constitution, that can grant relief to the parties without even waiting
for statutory period of six months stipulated in Section 13-B of the Act.
recently in Manish Goel (supra) and Smt.
(supra), this Court while taking note of the decisions in Anjana Kishore
(supra) and Anil Kumar Jain (supra) has also referred to various other
judgments of this Court taking a contrary view and has observed that under
Article 142 of the Constitution, this Court cannot altogether ignore the
substantive provisions of the statute and pass orders concerning an issue which
can be settled only through a mechanism prescribed in a statute. The Court has
also observed that power under Article 142 of the Constitution is not to be exercised
in a case where there is no basis in law which can form an edifice for building
up a structure. Reference has also been made to the decision of Commissioner,
U.P., Allahabad5, wherein it was held that an order which this Court can make
in order to do complete justice between the 5 AIR 1963 SC 996 7 parties, cannot
be inconsistent with the substantive provisions of the relevant statutory laws.
Inter alia, observing that no court has competence either to issue a direction
contrary to law or to direct an authority to act in contravention of the
statutory provisions, the Court finally summarised the law on the issue before
us to the effect that in exercise of power under Article 142 of the
Constitution, this Court `generally' does not pass an order either in
contravention of or ignoring the statutory provisions or exercise power merely
on sympathetic grounds.
it can be gathered from the use of the word `generally' in para 15 and the last
paragraph of the judgment where the Court did not find the case before it to be
a fit case for exercise of its extra-ordinary jurisdiction under Article 142 of
the Constitution, that both the said decisions do not altogether rule out the
exercise of extraordinary jurisdiction by this Court under Article 142 of the
Constitution, yet we feel that in the light of certain observations in the said
decisions, particularly in Manish Goel (supra), coupled with the fact that the
decision in Anjana Kishore (supra) was rendered by a Bench of three learned
Judges of this Court, it would be appropriate to refer the matter to a Bench of
three Judges in order to have a clear ruling on the issue for future guidance.
13.Accordingly, we refer the following question for the consideration of a
Bench of three Hon'ble Judges:- (I) Whether the period prescribed in
sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its
jurisdiction under Article 142 of the Constitution? 14.We direct the Registry
to place the papers of this case before the Hon'ble Chief Justice of India for
agreed between the parties that in the meanwhile, they will file a joint
petition under Section 13-B of the Act for grant of divorce by mutual consent
in terms of the settlement within two weeks from today.
informed that the fixed deposit for the amount deposited by the respondent in
terms of the settlement will be maturing for payment in the first week of
August, 2010. As and when the said fixed deposit matures, a sum of Rupees two
lacs and fifty thousand shall be paid to the petitioner by means of a bank
draft payable at Itarsi (Madhya Pradesh). The balance amount along with
interest accrued thereon shall be put in a fresh fixed deposit for a period of
in the month of November, 2010.
9 ............................................J. [D.K. JAIN]
............................................J. [C.K. PRASAD]
MAY 12, 2010.