DEVINDER SINGH NARULAversusMEENAKSHI NANGIA

                         [2012] 7 S.C.R. 372


A                    DEVINDER SINGH NARULA
                                   v.
                         MEENAKSHI NANGIA
                   (Civil Appeal No. 5946 of 2012)

                          AUGUST 22, 2012
B
        [ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]

         CONSTITUTION OF /NOIA, 1950:

c        Art. 142 read with Art. 136 - Exercise of jurisdiction to
    dissolve the marriage before the cooling off period, on a
    petition for divorce by mutual consent u/s 13-8 of Hindu
    Marriage Act, 1955 - Held: It is no doubt true that the
    Legislature had in its wisdom stipulated a cooling off period
    of six months from the date of filing of a petition for mutual
D   divorce till such divorce is actually granted, with the intention
    that it would save the institution of marriage and the intention
    of the Legislature cannot be faulted with, but there may be
    occasions when in order to do complete justice to the parties
    it becomes necessary for Supreme Court to invoke its powers
E   under Art. 142 in an irreconcilable situation - It is quite clear
    from the materials on record that within 3 months of the
    marriage the petitioner filed a petition u/s 12 of the Act -
    Thereafter, they have not been able to live together - In effect,
    there appear to be no marital ties between the parties at all -
F   The condition indicated in s. 13-8 for grant of a decree of
    dissolution of marriage by the mutual consent is present in
    the instant case - The marriage is subsisting by a tenuous
    thread on account of the statutory cooling off period, out of
    which four months have already expired - In the
G   circumstances, this is one of those cases where the Court
    may invoke and exercise the powers vested in it under Art.
    142 ·· Accordingly, the petition u/s 12 is converted to one u!s
    13-8 and invoking the powers under Art. 142, a decree of

H                                 372
DEVINDER SINGH NARULA v. MEENAKSHI NANGIA 373


divorce by mutual consent is granted - Hindu Marriage Act,    A
1955 - s. 13-8 read with s. 12.

     The appellant-husband filed a petition u/s12 of the
Hindu Marriage Act on 1.6.2011 on the ground that the
marriage solemnized on 26.3.2011, was a nullity; that the     8
parties had been living separately since their marriage
and in future also they could never live together under
one roof. The respondent-wife was working overseas in
Canada. On 15.12.2011, an application was filed by the
parties indicating that they had settled the matter through   C
the Mediation Centre and that they would be filing a
petition for divorce by mutual consent. Consequently, the
HMA proceedings were disposed of as withdrawn, and
the parties filed a joint petition u/s 13-B of the Act. The
Additional District Judge, by order dated 13.4.2012,
posted the matter on 15.10.2012 for the purpose of            D
second motion as contemplated u/s 13-B. In the instant
appeal it was submitted on behalf of both the parties that
the period that had elapsed since the original petition u/
s 12 of the Act could be counted towards the cooling off
period of six months stipulated u/s 13-B of the Act.          E
    Allowing the appeal, the Court

     HELD: 1. Section 13-B of the Hindu Marriage Act, 1955
itself provides for a cooling off period of six months on F
the first motion being moved, in the event the parties
changed their minds during the said period. It is no doubt
true that the Legislature had in its wisdom stipulated a
cooling off period of six months from the date of filing of
a petition for mutual divorce till such divorce is actually G
granted, with the intention that it would save the
institution of marriage. It is also true that the intention of
the Legislature cannot be faulted with, but there may be
occasions when in order to do complete justice to the
parties it becomes necessary for this Court to invoke its H
powers under Art. 142 of the Constitution of India in an
    374     SUPREME COURT REPORTS               [2012] 7 S.C.R.


A   irreconcilable situation. In appropriate cases invocation
    of such power would not be unjustified and may even
    prove to be necessary. [para 3, 9-10] [375-H; 376-A; 377-
    0-F; 378-A-B]

8      1.2 It is quite clear from the materials on record that
  although the marriage between the parties was
  solemnized on 26.3.2011, within 3 months of the marriage
  the petitioner filed a petition u/s 12 of the Act for a decree
  of nullity of the marriage. Thereafter, they have not been
c able to live together and lived separately for more than 1
  year. In effect, there appear to be no marital ties between
  the parties at all. It is only the provisions of s.13-8(2) of
  the Act which is keeping the formal ties of marriage
  between the parties subsisting in name only. At least the
0 condition indicated in s.13-B for grant of a decree of
  dissolution of marriage by the mutual consent is present
  in the instant case. This is one of those cases where this
  Court may invoke and exercise the powers vested in it
  under Art. 142 of the Constitution. The marriage is
E subsisting by a tenuous thread on account of the
  statutory cooling off period, out of which four months
  have already expired. There is no reason to continue the
  agony of the parties for another two months. [para 12-13]
  [379-B-F]
F     '1.3 The pending petition u/s 12 of the Hindu Marriage
  Act before the Additional District Judge is converted into
  one u/s 13-B of the Act; and by invoking the powers
  under Art. 142 of the Constitution, a decree of mutual
  divorce is granted to the parties and it is directed that the
G marriage between the parties shall stand dissolved by
  mutual consent. [para 14] [379-G-H; 380-A]

      Anil Kumar Jain vs. Maya Jain 2009 (14) SCR 90          =
  (2009) 10 SCC 415; Kiran vs. Sharad Dutt (2000) 10 SCC
H 243 - relied on
DEVINDER SINGH NARULA v. MEENAKSHI NANGIA 375


                      Case Law Reference:                           A
     2009 (14) SCR 90          relied on              para 4
     (2000) 10 sec 243         relied on              para 9

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.                 B
5946 of 2012.

    From the Judgment & Order dated 13.04.2012 of the ADJ
(West)/Delhi, in H.M.A. Petition No. 204 of 2012.

     Lalit Kumar for the Appellant.                                 c
    The Judgment of the Court was delivered by

     ALTAMAS KABIR, J. 1. Leave granted.

     2. This appeal arises out of an order passed by the            D
Additional District Judge-01, West Delhi, on 13.4.2012 in HMA
No.204/2012, while entertaining a joint petition filed by the
parties under Section 13-B of the Hindu Marriage Act, 1955.
On such petition being presented, the learned Court below
posted the matter on 15.10.2012 for the purpose of second           E·
motion, as contemplated under Section 13-B of the aforesaid
Act, which is extracted hereinbelow for reference:-

    "13-B.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         F
    Court by both the parties to a marriage together, whether
    such marriage was solemnized before or after the
    commencement of the Marriage Laws (Amendment)Act,
    1976, on the ground that they have been living separately
    for a period of one year or more, that they have not been       G
    able to live together and that they have mutually agreed
    that the marriage should be dissolved.

    3. The Section itself provides for a cooling period of six
months on the first motion being moved, in the event the parties    H
   376      SUPREME COURT REPORTS                   (2012] 7 S.C.R.


A changed their minds during the said period. Accordingly, after
  the initial motion and the presentation of the petition for mutual
  divorce, the parties are required to wait for a period of six
  months before the second motion can be moved, and at that
  point of time, if the parties have made up their minds that they
8 would be unable to live together, the Court, after making such
  inquiry as it may consider fit, grant a decree of divorce
  declaring the marriage to be dissolved with effect from the date
  of the decree.                                           ·

        4. Aggrieved by the said order of the learned Additional
C District Judge, fixing the date of the 2nd motion after six months,
  the petitioner has moved this Court by way of this appeal, relying
  on a decision of this Court in Anil Kumar Jain vs. Maya Jain
  [(2009) 1O sec 415], whereby after arriving at a conclusion
  that the marriage between the parties had broken down
D irretrievably, this Court felt justified to invoke its powers under
  Article 142 of the Constitution.

        5. On behalf of both the parties it was urged that since
  more than 18 months had elapsed since the original petition
E under Section 13 of the Hindu Marriage Act, 1955, have been
  filed, the said period could be counted towards the cooling
  period of six months stipulated under Section 13-8 of the above
  Act. It was urged that by such reckoning the parties have
  already completed the waiting period of six months, as
F envisaged under Section 13-8 of the Act.

         6. It was also urged that the other conditions contained in
  Section 13-8(1) of the Act had also been satisfied as the
  parties had been living separately for more than a year and had
  mutually agreed that the marriage should be dissolved. It was
G urged that exeept for the formality of not having made an
  application under Section 13-B, the other criteria had been duly
  fulfilled and having regard to the language of Section 13-8, a
  decree of dissolution of the marriage by way of mutual divorce
  should not be denied to the parties, since four months out of
H
DEVINDER SINGH NARULA v. MEENA_KSHI NANGIA 377
            [ALTAMAS KABIR, J.]
waiting period of six months contemplated under Section 13-            A
B had already been completed.

      7. It was contended that as was done in the case of Anil
Kumar Jain (supra), this Court could invoke its powers under
Article 142 of the Constitution in the best interest of the parties.   8
It was urged that technicality should be tampered by
pragmatism, if substantive justice was to be done to the parties.

      8. On behalf of the State it was submitted that in view of
the statutory provisions, the prayer being made on behalf of the
petitioner and the respondent wife should not be entertained           C
as that would lead to confusion in the minds of the public and
would be against the public interest.

      9. We have carefully considered the submissions made
on behalf of the parties and have also considered our decision         o
in Anil Kumar Jain's case (supra). 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. It is also true that the       E
intention of the Legislature cannot be faulted with, 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. In fact, in the
case of Kiran vs. Sharad Dutt [(2000) 1O sec 243], which was
considered in Anil Kumar Jain's case, after living separately          F
for many years and 11 years after initiating proceedings under
Section 13 of the Hindu Marriage Act, the parties filed a joint
application before this Court for leave to amend the divorce
petition and to convert the same into a proceeding under
Section 13-B of the Act. Treating the petition as one under            G
Section 13-B of the aforesaid Act, this Court by invoking its
powers under Article 142 of the Constitution, granted a decree
of mutual divorce at the stage of the SLP itself. In different
cases in different situations, this Court had invoked its powers
                                                                       H
    378     SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A   under Article 142 of the Constitution in order to do complete
    justice between the parties.

          10. Though we are not inclined to accept the proposition
    that in every case of dissolution of marriage under Section 13-
8   8 of the Act the Court has to exercise its powers under Article
    142 of the Constitution, we are of the opinion that in appropriate
    cases invocation of such power would not be unjustified and
    may even prove to be necessary. The question with which we
    are faced is whether this is one of such cases?

C       11. As will appear in the averments made in this appeal,
  the appellant filed a petition under Section 12 of the Hindu
  Marriage Act on 1.6.2011 on the ground that the marriage
  contracted on 26.3.2011, was a nullity; that the parties had been
  living separately since their marriage and have not cohabitated
D with each other since 1.6.2011 and in future also they could
  never live together under one roof. According to the parties, they
  are residing separately from each other for the la~t one year
  and the respondent was presently working overseas in
  Canada. It is with such object in mind that during the pendency
E of the proceedings under Section 12 of the Act the parties
  agreed to mediation and during mediation the parties agreed
  to dissolve their marriage by filing a petition under Section 13-
  8 of the above Act for grant of divorce by mutual consent. In
  the proceedings before the Mediator, the parties agreed to
F move appropriate petitions under Section 13-8(1) and 13-8(2)
  of the Act. A report was submitted by the Mediator of the
  Mediation Centre of the Tis Hazari Courts to the Court in the
  pending HMA No.239 of 2011. It is pursuant to such agreement
  during the mediation proceedings that an application was filed
  by the parties in the aforesaid pending HMA on 15.12.2011
G indicating that they had settled the matter through the mediation
  centre and that they would be filing a petition for divorce by
  mutual consent on or before 15.4.2012. On the strength of the
  said petition, the HMA proceedings were disposed of as
  withdrawn. Subsequently, on 13.4.2012 the parties filed a joint
H
DEVINDER SINGH NARULA v. MEENAKSHI NANGIA 379
            [ALTAMAS KABIR, J.]

petition under Section 13-B of the Act on which the order came        A
to be passed by the learned Additional District Judge -01, West
Delhi, fixing the date for the second motion on 15.10.2012.

     12. It is quite clear from the materials on record that
although the marriage between the parties was solemnized on           8
26.3.2011, within 3 months of the marriage the petitioner filed
a petition under Section 12 of the Hindu Marriage Act, 1955,
for a decree of nullity of the marriage. Thereafter, they have not
been able to live together and lived separately for more than 1
year. In effect, there appears to be no marital ties between the
parties at all. It is only the provisions of Section 13-8(2) of the   C
aforesaid Act which is keeping the formal ties of marriage
between the parties subsisting in name only. At least the
condition indicated in Section 13-B for grant of a decree of
dissolution of marriage by the mutual consent is present in the
instant case. It is only on account of the statutory cooling period   D
of six months that the parties have to wait for a decree of
dissolution of marriage to be passed.

     13. In the above circumstances, in our view, this is one of
those cases where we may invoke and exercise the powers               E
vested in the Supreme Court under Article 142 of the
Constitution. The marriage is subsisting by a tenuous thread
on account of the statutory cooling off period, out of which four
months have already expired. When it has not been possible
for the parties to live together and to discharge their marital       F
obligations towards each other for more than one year, we see
no reason to continue the agony of the parties for another two
months.

     14. We, accordingly, allow the appeal and also convert the
pending proceedings under Section 12 of the Hindu Marriage            G
Act, 1955, before the Additional District Judge-01, West Delhi,
into one under Section 13-B of the aforesaid Act and by
invoking our powers under Article 142 of the Constitution, we
grant a decree of mutual divorce to the parties and direct that
                                                                      H
    380      SUPREME COURT REPORTS                    [2012] 7 S.C.R.


A   the marriage between the parties shall stand dissolved by
    mutual consent. The proceedings before the Additional District
    Judge-01, West Delhi, being HMA No.204 of 2012, is
    withdrawn to this Court on consent of the parties and disposed
    of by this order.
B
         15. In the facts of the case, the parties shall bear their own
    costs.

    R.P.                                            Appeal allowed.