The dissolution of marriage through mutual consent can be permitted before the cooling period of six months under the Hindu Marriage Act, by invoking decrees and orders of Supreme Court as per the Constitution, the top court has held.
“We are of the opinion that in appropriate cases invocation of such power would not be unjustified and may even prove to be necessary,” ruled a bench of Justice Altamas Kabir and Justice J. Chelameswar in a recent judgment.
Under Article 142 of the Constitution, “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.”
However, the Supreme Court added that it was not inclined to accept the proposition that in every case of dissolution of marriage under Section 13-B of the Hindu Marriage Act, 1955, the court has to exercise its powers under Article 142.
Section 13-B of the Hindu Marriage Act, 1955, provides for the couple seeking divorce through mutual consent to wait for a period of six months after making first joint application for divorce. It’s only after the expiry of those six months that the couple can move a second application for the dissolution of their marriage.
Justice Altamas Kabir said, “It is no doubt true that the legislature had in its wisdom stipulated a cooling 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. 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 (between the couple).”
In dealing with cases that demanded a different approach, the court said that it had in the past invoked its powers under Article 142 of the Constitution “in order to do complete justice to the parties”.