REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (C) No.899 OF 2007

Neeti Malviya ... Petitioner  

VERSUS

Rakesh Malviya ... Respondent

O R D E R

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  

Malviya Vs. Neeti  Malviya,  filed  by  the  respondent–husband,  from the  

court of Additional Principal Judge, Family Court, Bangalore (Karnataka)  

to the Family Court, Hoshangabad (Madhya Pradesh).   

2. After 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

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:

“…One 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.  The  amount,  so  deposited,  shall  be  put  in  a  Fixed  Deposit  Receipt for a period upto 1st May, 2010.

….. ….. ….. …..

It is 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.”

3. The 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 instalment 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  

this  Court  in  Manish Goel  Vs.  Rohini  Goel1 and  Smt.  Poonam  Vs.  

1 2010 (2) SCALE 332

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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.   

4. We have heard learned counsel for both the parties.  

5. 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 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,  

2 JT 2010 (3) SC 259

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pass a decree of divorce declaring the marriage to be dissolved with  

effect from the date of the decree.   

6. As 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.   

7. The 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  

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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.   

9. In  fact,  in  Anjana  Kishore  Vs.  Puneet  Kishore3,  a  Bench  of  three  

Judges  of  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.   

10.The 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  

of this Court in Anil Kumar Jain Vs. Maya Jain4, though in a different  

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

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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.

11.However, recently in  Manish Goel  (supra) and                   Smt.   

Poonam  (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  

the  Constitution  Bench  in  Prem  Chand  Garg  Vs.  Excise  

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

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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.

12.Although 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.

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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 appropriate orders.

15.It is 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.  

We are 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 six months.

16.List in the month of November, 2010.

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….........................................J. [D.K. JAIN]

.…........................................J.           [C.K. PRASAD]

NEW DELHI, MAY 12, 2010.

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