The Hindu Marriage Act of 1955  was the first to recognize divorce among
Hindus. According to Manu, only the death of one of the partners may bring a
marriage to an end. Any divorce that was not merely frowned upon, but also
labelled and biased was strongly discouraged.
The sole divorce law in British India was the Divorce Act of 1869,  which
allowed Christians to divorce each other in India. Apart from that, there was no
legal framework in place in India for divorce. The Hindu Marriage Act was passed
in 1955, and it included provisions on divorce. The term "divorce" is not
defined in the statute as it merely refers to the termination of a marriage.
Section 13 of the Hindu Marriage Act outlines the numerous grounds for divorce
that the spouse may have. Wives have been given more reasons to file for
divorce. In the case of divorce, the Hindu marriage legislation applies the
blame theory, which implies that a marriage can be dissolved if one of the
spouses is accountable or liable for a marital violation.
A divorce is an option for the innocent spouse. As holy as marriage might be,
divorce must be acknowledged in a civilised culture. Higher focus on individual
liberty and choices has resulted in increased acceptance of divorcees in our
nation, as well as a decrease in stigmatisation, which is a beneficial trend in
The Hindu Marriage Act, Section 13B(1), read with Section 13B(2), stipulates a
total waiting period of 1½ years from the date of separation before filing an
application for a decree of divorce. In the case of Amit Kumar v. Suman
(Civil Appeal No. 7650 of 2021) , the court found that the
required waiting time of six months under Section 13(B) (2) of the Hindu
Marriage Act, 1955 (Act) might be waived if the parties to the marriage have
Details of the Case
Citation : Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270
Appellant : Amit Kumar v/s Respondent : Suman Beniwal
Decided on December 11, 2021 - Civil Appeal No. 7650 of 2021
The Judgement of the Court was delivered by Indira Banerjee, J.
Facts of the Case
On September 10, 2020, the Appellant and Respondent, both educated and
well-placed in life (the Appellant is an IPS officer and the Respondent is an
IFS official), married according to Hindu traditions. The Appellant and
Respondent admittedly separated on September 13, 2020, three days after their
marriage, due to irreconcilable disagreements.
As per Section 13(1) of the Hindu Marriage Act, the parties should be living
separately for at least 1 year to present a petition for divorce through mutual
consent. So as per the requirements put forth by the Hindu Marriage Act they
lived separately for a period of 1 year and after more than a year of
separation, the Appellant and Respondent filed a petition in the Family Court
under Section 13B (1) of the Hindu Marriage Act for a judgement of divorce by
mutual consent on or around September 30, 2021.
On or about October 12, 2021, the Appellant and Respondent filed an application
in the Family Court, requesting a waiver of the six month waiting time imposed
by Section 13B(2) of the Hindu Marriage Act, in order to file a motion for the
Court to issue a divorce judgement.
The Family Court rejected the application as lacking of grounds and
unmaintainable in an order dated October 12, 2021. The Appellant filed a Civil
Revisional Application with the High Court of Punjab and Haryana, with the
number CR 2527 2021 (O&M), challenging this Order under Article 227 of the
Indian Constitution (High Court). The aforementioned Civil Revisional
Application was rejected by the High Court in a judgement and order dated
As a last resort, the Appellant took his grievances to the Hon'ble Supreme Court
of India and filed an appeal against the judgement and order put forth by the
High Court and Family Court respectively.
- Whether the High Court and Family err in their decision of dismissing
the divorce petition filed by the appellant.
- Whether Section 13B (2) of the Hindu Marriage Act is mandatory or if the
courts can waive the requirement under 13B (2) at its discretion.
- Whether a Supreme Court judgement be read in the manner of a statute and
with pedantic rigidity.
Both sides of the arguments were heard and analysed by the Court before reaching
the conclusion. The Family Court dismissed their petition to waiver the
statutory waiting period relying on the Judgement put forward by the Supreme
Court in the case of Amardeep Singh v. Harveen Kaur, 2017
.  The reason
for dismissal was that this instant case does not fall within the parameters ,
fixed in the above mentioned case, to waive off the stipulated period of six
months as mentioned under Section 13B(2) of the Hindu Marriage Act.
The judgement in Amardeep Singh (supra)
is unambiguous. The purpose of Section
13B of the Act is to allow parties to dissolve a marriage by consent if it has
irreversibly broken down. This would allow them to consider alternative
possibilities and move on with their lives. To protect against a hasty judgement,
Section 13B(2) of the Act , which is directory in nature, provides a six-month
However, if a Court determines that there is no hope of reconciliation, it
should not be powerless to waive the six-month statutory time in order to save
the parties from further misery. The power, however, has been subjected to the
following conditions, which are replicated below:
- The statutory period of six months specified in Section 13B(2), in
addition to the statutory period of one year under Section 13B(1) of
separation of parties is already over before the first motion itself;
- All efforts for mediation/conciliation including efforts in terms of
Order XXXIIA 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;
- The parties have genuinely settled their differences including alimony,
custody of child or any other pending issues between the parties;
- The waiting period will only prolong their agony.
In this instance, the first motion was filed on September 30, 2021, and the
parties had been living separately since September 13, 2020. As a result, the
time of separation of 18 months was not complete as of the date of recording the
statement of first motion. Since this is in violation of the first guideline put
forth in the Amardeep Singh case, the Family court dismissed the petition being
devoid of merits.
The High Court also dismissed the appeal filed by the Appellant citing the same
reason. The High Court correctly found that Section 13B (2) is directory, but
rejected the Criminal Revisional Application with the observation that the
Family Court had no option but to dismiss the application.
On further appeal, the Supreme Court observed that, in its wisdom, the
legislature devised Section 13B (2) of the Hindu Marriage Act, which provides
for a six-month cooling period from the date of filing the divorce petition
under Section 13B (1) in the event that the parties change their minds and
reconcile their issues.
If the parties still want to divorce after six months
and file a request, the Court must award a divorce decree pronouncing the
marriage dissolved with effect from the date of the decree, after conducting any
investigations it deems necessary. And regarding the Amardeep Singh judgement,
the court observed that, the factors mentioned are illustrative and not
The Family Court and the High Court misinterpreted the judgement in
Amardeep Singh v. Harveen Kaur (supra)
and proceeded on the basis that this
Court has held that the conditions set forth in paragraph 19 of the said judgement, quoted above, are mandatory, and that the statutory waiting period of
six months under Section 13B (2) can only be waived if all of the aforementioned
conditions are met. A decision is well established as a precedent for the legal
question that is discussed and decided. A decision should not be interpreted in
the same way as a legislation and understood with pedantic rigour.
The court in Devinder Singh Narula v. Meenakshi Nangia
(2012) , Soni Kumari
v. Deepak Kumar
(2016)  and Anil Kumar Jain v. Maya Jain (2009)  had also
reaffirmed the court's power to waive the 6 month waiting period under Article
142 of the Indian Constitution.
As previously stated, the parties in this case are both well-educated and
high-ranking government officials. Despite the fact that the parties have been
apart for over 14 months, they still want to divorce. Making the parties wait
serves no beneficial purpose other than to prolong their pain. The appeal
against the High Court and Family Court orders was permitted by the court. A
decree of divorce by mutual consent was also issued under Section 13B of the HMA.
Section 13 outlines the numerous grounds for divorce that the spouse may have.
More reasons have been offered to wives to apply for divorce. When it comes to
divorce, Hindu law follows the blame principle, which states that a marriage can
be annulled if one of the spouses is responsible or liable for a marital
For the innocent spouse, divorce is a possibility. Divorce, as
sacred as marriage may be, must be recognised in a civilised society. Increased
acceptance of divorcees in our country, as well as a decrease in stigmatisation,
has arisen from a greater focus on individual liberty and choices, which is a
positive trend in society. As a result, the Hindu Marriage Act features a fairly
equitable mechanism for dissolving marriages since it treats both parties
The unusual features of the case have given birth to new practical aspects to
consider when waiving the cooling-off period, and have created a bigger and more
flexible window to avoid the waiting period where both parties have made a
reasonable choice to divorce amicably. This decision creates a favourable
precedent for providing individuals more liberty in private matters of marriage
and reducing the government's involvement over citizens' affairs and in
exploring the scope of binding, precedents have on the court.
- The Hindu Marriage Act, 1955|Legislative Department | Ministry of Law
and Justice | GoI, https://legislative.gov.in/actsofparliamentfromtheyear/hindu-marriage-act-1955
(last visited Sep 17, 2022).
- The Divorce Act, 1869|Legislative Department | Ministry of Law and
Justice | GoI, https://legislative.gov.in/actsofparliamentfromtheyear/divorce-act-1869
(last visited Sep 17, 2022).
- Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270
- Amardeep Singh v. Harveen Kaur, 2017(4) RCR (Civil) 608
- Devinder Singh Narula v. Meenakshi Nangia, (2012) 8 SCC 580
- Soni Kumari v. Deepak Kumar, (2016) 16 SCC 346
- Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415