Delhi High Court
Shiksha Kumari vs Santosh Kumar on 22 April, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22.04.2025
+ MAT.APP.(F.C.) 111/2025
SHIKSHA KUMARI .....Appellant
Through: Mr.Jitendra Bharti, Adv. with
appellant
versus
SANTOSH KUMAR .....Respondent
Through: Mr.Mohd. Naushad Alam,
Mr.Saurav Kansal, Advs. for
respondent
Mr.Rajshekhar Rao, Sr. Adv.
(Amicus Curiae) with Mr.Ajay
Sabharwal, Ms.Aashna Chawla,
Mr.Wamic Wasim, Mr.Zahid
Hashmi, Advs
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (ORAL)
1. This appeal has been filed by the appellant, challenging the
Order dated 10.03.2025 passed by the learned Additional Principal
Judge, Family Court, South West District, Dwarka Courts, New Delhi
(hereinafter referred to as, „Family Court‟) in HMA No. 525/2025,
tilted Shiksha Kumari v. Santosh Kumar, disposing of the
application filed by the parties herein seeking waiver of the six-
months period between the First and the Second Motions, as provided
under Section 13B(2) of the Hindu Marriage Act, 1955 (hereinafter
referred to as the „Act‟).
2. The learned Family Court, placing reliance on the Judgment
passed by the Division Bench of this Court in Sankalp Singh v.
Prarthana Chandra, 2013(135) DRJ 487 (DB), has held that although
a petition for the First Motion under Section 13B(1) of the Act can be
filed prior to the completion of one year of separation between the
parties, a decree of divorce by way of Mutual Consent cannot be
granted without the completion of the mandatory one-year period of
separation of the parties. The learned Family Court further held that
the period of six months between the First and the Second Motion can
be waived only in cases where the parties have already been separated
for more than one year.
3. In the present case, admittedly, the marriage between the parties
had been solemnized on 12.07.2024. It is the case of the parties that
the marriage could not be consummated due to temperamental and
other differences/ reasons beyond their control. It is the case of the
parties that they have been living separately since 18.08.2024, and by
way of an amicable settlement, have resolved their disputes and
executed a Memorandum of Understanding dated 13.09.2024, without
any consideration, recording therein that there is no chance of
reconciliation between them and all efforts towards the same have
failed. The MOU further records that they would be seeking a decree
of divorce by Mutual Consent before the Court of Competent
Jurisdiction.
4. Thereafter, the parties had filed a petition under Section 13B(1)
of the Act, which was allowed by the learned Family Court vide Order
dated 21.11.2024. However, the said order was subject to the
condition that the Second Motion under Section 13B(2) of the Act can
be filed by the parties only after the statutory period of one year of
separation, as provided under Section 13B(1) of the Act, had elapsed.
5. The parties challenged the above order by way of an appeal
under Section 19 of the Family Courts Act, 1984, being Mat. App.
(FC) 433/2024. The same was disposed of by this Court vide its order
dated 20.12.2024, observing as under:
"5. Having considered, the submissions of
learned counsel for the parties, are of the view
that the impugned judgement prematurely
curtails the right of the parties to move to the
learned Family Court with prayer seeking
waiver of the statutory period at the time of
moving the second motion. In our considered
opinion, it was not open for the learned
Family Court to hold at the time of deciding
the first motion itself that no waiver qua the
statutory period would be granted at the time
of the second motion, which is yet to be moved
by the parties. We, therefore, dispose of the
appeal by making it clear that it will be open
for the parties to move an appropriate
application for waiver of the statutory period,
which application, as and when moved will be
considered by the learned Family Court on its
own merits."
6. The parties then filed a petition under Section 13B(2) of the Act
along with an application seeking waiver of the six-months period
between the First and the Second Motion. However, as noted
hereinabove, the same has been rejected by the learned Family Court
vide the Impugned Order, observing that since the one-year period of
separation has still not expired, the waiver cannot be granted.
7. In this regard, the learned Family Court has placed reliance on
the Judgment of this Court in Sankalp Singh (supra), wherein the
Division Bench of this Court was considering whether a petition under
Section 13B(1) of the Act can be filed before the expiry of one year of
separation. The Court held that one of the essential ingredients
provided under Section 13B(1) of the Act is that the parties must be
living separately for a period of one year and that there can be no
waiver of this period of separation. The Court further held that the
proviso to sub-section (1) of Section 14 of the Act, which permits the
presentation of a petition even before the completion of one year of
marriage, would equally apply to a petition to be presented under
Section 13B(2) of the Act. The Court also took note of the fact that
Section 13B(1) of the Act is "subject to the provision of this Act",
whereas Section 14 (1) of the Act begins with a non-obstante clause,
that is, "notwithstanding anything contained in the Act". The Court,
however, was confronted with the then existing legal position that
neither the learned Trial Court nor the High Court could waive the
period of six months between the presentation of the First Motion and
the Second Motion, as provided under Section 13B(2) of the Act. The
Court, therefore, held as under:
"30. A more liberal construction can envisage
the application of the proviso to Section 14 (1)
of the said Act without compromising on the
essential ingredients of Section 13B (1) of the
said Act. This is possible by ensuring that none
of the three essential ingredients are
compromised. Thus, parties should have been
living separately for one (1) year or more, that
they have not been able to live together and
have mutually agreed that the marriage should
be dissolved. However, the dissolution of
marriage has to take effect only after the
hiatus period of six (6) to eighteen (18)
months, on the second motion being filed.
Thus, before such a decree of divorce is
passed post second motion the period of one
(1) year of separation ought to have elapsed
but in order to present the first motion, the
requirement of one (1) year separation would
not apply provided it meets the parameters of
proviso to Section 14 (1) of the said Act. This
view would not compromise on the essential
ingredients of any part of Section 13B of the
said Act and simultaneously respect the
wisdom of the legislature which enacted
Section 13B of the said Act and incorporated it
by insertion with sub-section (1) beginning
with "Subject to the provisions of this Act"
which would include Section 14. Not only that
Section 14 of the said Act itself begins with a
"Notwithstanding" clause. This would, thus,
be the harmonious construction of the
provisions of the said Act which would enable
to give meaning to all the relevant provisions
of the said Act without compromising the
ingredients of any. Such a course of action is
possible especially because there will not be a
waiver of minimum six (6) months hiatus
period between the grant of first motion and
the second motion being presented with the
additional condition under Section 13B (1) of
the said Act that even if the first motion is
presented within the first year of marriage as
per the satisfaction of proviso to Section 14 (1)
of the said Act, the decree of divorce would
only be granted once the period of one (1)
year has elapsed from the separation."
8. In the present case, as is noted hereinabove, the learned Family
Court, having taken into account the exceptional circumstances that
have been set out by the parties, has already waived the mandatory
one year period of separation as provided under Section 13B(1) of the
Act. The only hurdle that the parties now face is that if the waiver of
the one year period has been granted by applying the above Judgment
of this Court in Sankalp Singh (supra), then equally, divorce cannot
be granted before the one-year period of separation has elapsed.
Moreover, the six months period between the First and the Second
Motion, in any case, cannot be waived in terms of the said Judgment.
9. As far as the waiver of the six-months period between the First
and the Second Motion period is concerned, the law has undergone a
drastic change since the Judgment of this Court in Sankalp Singh
(supra). In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the
Supreme Court considered the question of whether the minimum
period of six months, stipulated under Section 13B(2) of the Act, is
mandatory or whether it can be relaxed in exceptional circumstances.
The Court taking note of the object of the provisions of the Act and
the amendment made therein, held as under:
"19. Applying the above to the present
situation, we are of the view that where the
court dealing with a matter is satisfied that a
case is made out to waive the statutory period
under Section 13-B(2), it can do so after
considering the following:
(i) the statutory period of six months
specified in Section 13-B(2), in addition
to the statutory period of one year under
Section 13-B(1) of separation of parties
is already over before the first motion
itself;
(ii) all efforts for mediation/conciliation
including efforts in terms of Order 32-A
Rule 3 CPC/Section 23(2) of the
Act/Section 9 of the Family Courts Act to
reunite the parties have failed and there
is no likelihood of success in that
direction by any further efforts;
(iii) the parties have genuinely settled
their differences including alimony,
custody of child or any other pending
issues between the parties;
(iv) the waiting period will only prolong
their agony.
The waiver application can be filed one week
after the first motion giving reasons for the
prayer for waiver. If the above conditions are
satisfied, the waiver of the waiting period for
the second motion will be in the discretion of
the court concerned.
20. Since we are of the view that the period
mentioned in Section 13-B(2) is not mandatory
but directory, it will be open to the court to
exercise its discretion in the facts and
circumstances of each case where there is no
possibility of parties resuming cohabitation
and there are chances of alternative
rehabilitation."
10. The above Judgment was subsequently considered by the
Supreme Court in Amit Kumar v. Suman Beniwal, (2023) 17 SCC
648, wherein, the Supreme Court held that the factors mentioned in
paragraph 19 of the Judgment in Amardeep Singh (supra) are
illustrative and not exhaustive. The Court went ahead and identified
eight circumstances to be considered while exercising discretion to
waive the statutory waiting period of six months, as under:
"(i) the length of time for which the parties
had been married;
(ii) how long the parties had stayed together
as husband and wife;
(iii) the length of time the parties had been
staying apart;
(iv) the length of time for which the litigation
had been pending;
(v) whether there were any other proceedings
between the parties;
(vi) whether there was any possibility of
reconciliation;
(vii) whether there were any children born out
of the wedlock;
(viii) whether the parties had freely, of their
own accord, without any coercion or pressure,
arrived at a genuine settlement which took
care of alimony, if any, maintenance and
custody of children, etc."
11. In view of the above change in law with respect to the
jurisdiction of a Family Court to waive the six months mandatory
period between the First and the Second Motion, in our view, the
Judgment of this Court in Sankalp Singh (supra) may require a re-
consideration.
12. The effect of the above would be that in terms of Sankalp
Singh (supra), the one-year mandatory period of separation as
provided under Section 13B(1) of the Act can be waived by invoking
Section 14 of the Act. Now, with the evolving law, even a six months
period between the First and the Second Motion can also be waived.
Therefore, there may be no reason or embargo on the learned Family
Court, in appropriate facts and where exceptional hardship is made
out, to waive both these conditions and grant a Decree of Divorce
even though the one-year period of separation has not elapsed and/or
the six-months period between the First and the Second Motion has
not elapsed. However, we are presently bound by the Judgment of
Sankalp Singh (supra), and therefore, need not say anything further
on the same.
13. We, therefore, request Hon‟ble the Chief Justice to consider
constituting a Full Bench to consider the following questions of law:
(a) Whether a petition under Section 13B(1) of the Hindu
Marriage Act can be filed by the parties before completing
the period of separation of one year?;
(b) If the answer to the above question is in the affirmative,
whether the period of six months between the presentation
of the First Motion under Section 13B(1) of the Hindu
Marriage Act and the Second Motion under Section 13B(2)
of the Hindu Marriage Act, can be waived off by the learned
Court even though the parties have not been living
separately for more than one year on the date when such
waiver is prayed for?
14. As far as the present appeal is concerned, the learned counsels
for the parties submit that as the one year period of separation between
the parties would conclude on 18.08.2025, the learned Family Court
should reconsider exercising its powers akin to the proviso to sub-
section (1) of Section 14 of the Act and may grant a decree of divorce
stipulating it to become operative only after the expiry of the one-year
period of separation as provided under Section 13B(1) of the Act. In
support of this submission, they have drawn our attention to the
reasons stated in the application seeking waiver of the six-months
statutory period of separation.
15. Section 14 of the Act reads as under:-
"Section 14. No petition for divorce to be
presented within one year of marriage.
(1) Notwithstanding anything contained in this
Act, it shall not be competent for any court to
entertain any petition for dissolution of a
marriage by a decree of divorce, [unless at the
date of the presentation of the petition one one
year has elapsed] since the date of the
marriage:
Provided that the court may, upon application
made to it in accordance with such rules as
may be made by the High Court in that behalf,
allow a petition to be presented 1[before one
year has elapsed] since the date of the
marriage on the ground that the case is one of
exceptional hardship to the petitioner or of
exceptional depravity on the part of the
respondent, but if it appears to the court at the
hearing of the petition that the petitioner
obtained leave to present the petition by any
misrepresentation or concealment of the
nature of the case, the court may, if it
pronounces a decree, do so subject to the
condition that the decree shall not have effect
until after the [expiry of one year] from the
date of the marriage or may dismiss the
petition without prejudice to any petition
which may be brought after [expiration of the
said one year] upon the same or substantially
the same facts as those alleged in support of
the petition so dismissed.
(2) In disposing of any application under this
section for leave to present a petition for
divorce before the 4[expiration of one year]
from the date of the marriage, the court shall
have regard to the interests of any children of
the marriage and to the question whether there
is a reasonable probability of a reconciliation
between the parties before the expiration of
the [said one year]."
16. A reading of the above provision would show that though, in
terms of Section 14(1) of the Act, there is an embargo on the Court to
entertain any petition for dissolution of a marriage by a decree of
divorce unless on the date of the presentation of the petition one year
has elapsed since the date of the marriage, the Proviso to Section 14(1)
of the Act empowers the Court to allow a petition to be presented
before one year has elapsed since the date of marriage in a case where
exceptional hardship is shown to be caused to the petitioner or it is a
case of exceptional depravity on the part of the respondent.
17. The Proviso to Section 14(1) of the Act further states that where
the Court entertains a petition before the expiry of one year of the
marriage and later it appears to the Court that the petitioner obtained
leave to present the petition by any misrepresentation or concealment
of the nature of the case, the court may, if it pronounces a decree, do
so subject to the condition that the decree shall not have effect until
after the expiry of one year from the date of the marriage or may
dismiss the petition without prejudice to any petition which may be
brought after the expiration of the said one year upon the same or
substantially the same facts as those alleged in support of the petition
so dismissed. Therefore, even in a case where the petitioner is found
guilty of misrepresentation or concealment while obtaining leave of
the Court, the Court may, in given circumstances, grant divorce
stipulating it to take effect after the one year period from the marriage
has elapsed.
18. Sub-section (2) of Section 14 of the Act states that in disposing
of any application under Section 14(1) of the Act for leave to present a
petition for divorce before the expiration of one year from the date of
the marriage, the court shall have regard to the interests of any
children of the marriage and to the question whether there is a
reasonable probability of a reconciliation between the parties before
the expiration of the said one year.
19. In the present case, the Court has already applied its mind to the
application of the parties under the Proviso to Section 14(1) of the Act
while entertaining the petition filed by the parties under Section
13B(1) of the Act before the expiry of one year of their marriage. The
parties do not contend that there was any misrepresentation or
concealment in the said application. If the Court, in terms of the
Proviso to Section 14(1) of the Act, even in case where the petitioner
has been found guilty of misrepresentation and concealment, grant a
decree of divorce, though to take effect after one year of marriage,
given the object and purpose with which Section 13B of the Act was
introduced to the Act, and the manner in which the same has been
interpreted, we see no reason why such power should not be vested in
the Court where it is adjudicating on a petition under Section 13B(2)
of the Act. After all, the object of the provision, as explained by the
Supreme Court in Amardeep Singh (supra), is to enable the parties to
dissolve a marriage by consent if the marriage has irretrievably broken
down and to enable them to rehabilitate them as per available options.
The Court recognised that forcible perpetuation of status of matrimony
between unwilling partners does not serve any purpose, but would
only prolong the agony of the parties when there was no chance of
reconciliation.
20. In terms of the Judgment of this Court in Sankalp Singh
(supra), the conditions which have to be met by the parties are that
they must have been living separately for a period of one year and
there should be a gap of six months between the First and the Second
Motion. Both these conditions will be met as on 18.08.2025. The only
prayer of the parties is that, taking into account the exceptional
hardship that is being faced by them due to this continued matrimonial
alliance, the decree of divorce be passed though made effective from
18.08.2025 when both the conditions are met. We see no reason not to
accept the plea of the parties.
21. Though strictly the Proviso to Section 14(1) of the Act which
empowers the Court to grant a decree of divorce effective from a later
date does not apply to the facts of the case, the Court, keeping into
account that the parties have been living separately, had a short period
of matrimonial alliance, have no chance of reconciliation, have no
children, and continuing in the relationship is not only causing agony
to them but also their family members and is stated to be affecting
even the performance of their duty (with one of them being a Public
Servant holding a post of high responsibility), in our opinion,
empowers the Court to exercise recourse to the above option.
22. We, therefore, dispose of the present appeal in the following
terms:
a) The order of the learned Family Court dated 10.03.2025 is
set aside;
b) The parties may move a fresh petition under Section
13B(2) of the Act before the learned Family Court, along
with an application praying that they be granted a decree of
divorce effective from 18.08.2025;
c) The petition and application so filed shall be considered by
the learned Family Court on its own merits. In case the
learned Family Court decides to grant a Decree of Divorce
to the parties, the same shall, however, become operational
only with effect from 18.08.2025, when the parties
complete the period of the one-year separation.
23. We request the learned Registrar General of this Court to place
our order before Hon‟ble the Chief Justice for considering constituting
a Full Bench on the questions posed by us in paragraph 13 herein
above.
24. We express our gratitude to Mr.Rajshekhar Rao, Sr. Adv.
(Amicus Curiae), ably assisted by Mr. Ajay Sabharwal, Ms. Aashna
Chawla, Mr. Wamic Wasim, and Mr. Zahid Hashmi, Advocates, for
their valuable assistance rendered in this case.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
APRIL 22, 2025/Arya/DG
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