Divorce sans notice period? Constitution bench to decide

If couples are willing to walk away from their marriages without waiting for the statutory waiting period of a year, can Supreme Court (SC) stop them from doing so?

Faced with numerous lawsuits of this kind, SC has sought a constitution bench’s opinion on whether it could waive off this period to complete the process of justice in matrimonial cases.

The court has found it imperative to seek adjudication by a larger bench as the constitution doesn’t allow it to exercise article 142 to finally decide a matter by ignoring the basic principle of law.

Section 13-b (2) of the Hindu Marriage Act says in unambiguous terms that estranged spouses can move a petition for dissolution of marriage by mutual consent on the ground that “they have been living separately for a period of one year or more”.

It also specifically mentions that couples should mutually agree to dissolve the marriage. Once the petition is filed, the application is taken up by the family court after six months.

While subordinate courts can waive the waiting period of six months, the apex court doesn’t have the power to do so.

Eight years ago, the apex court had asked litigating spouses to file a joint plea before family courts under section 13B for granting divorce by mutual consent. It had also urged the court concerned to consider doing away with “the need of waiting for six months”.

A bench of justices DK Jain and CK Prasad sought the constitution bench’s opinion on the issue that’s extremely vital for settlement of cases that fall in the category of irretrievably broken down weddings.

The present order comes in the context of a lawsuit filed by a woman Neeti Malviya. She is seeking divorce from her husband Rakesh Malviya. While Rakesh lives in Bangalore, Neeti is from Hoshangabad in Madhya Pradesh.

He had deposited Rs65 lakh with the court in February last. But, a lawyer who assisted the court on this matter raised the issue on whether the apex court had the power to do away with the waiting period or reduce it.

The judges agreed with his proposition and sought the issue be decided by a larger bench.

Chief justice of India SH Kapadia will set up the constitution bench in July. The current bench has adjourned hearing on Neeti’s petition till November.