Creating a history after about a peirod of 9 years, a Writ Petition was filed under Article 226 of the Indian Constitution before the Hon’ble High Court of Delhi that drew attention towards the concept of the waiver of the six months period as prescribed u/s 13B(2) of the Hindu Marriage Act, 1955. This provision of the HMA, 1955 was discussed in detail in 2009 in the case of Anil Kumar Jain v. Maya Jain in which the Supreme Court held that the power to convert a petition filed u/s 13 (Divorce) of the HMA, 1955 to Section 13B (Mutual Divorce) and waive off the six months period, lied with the Supreme Court of India only. Contrary views were taken by many of the other High Courts such as the Gujarat, Madhya Pradesh and Rajasthan High Courts. Whereas after a tremendous research on this provision it was observed by the counsel of the Petitioner, Sh. H.S. Bhullar, that the High Court of Delhi had never received such a petition after 2009 and therefore seeking directions from the High Court for the waiver was as much as of a challenge as the High Court was strongly affirming the law laid down by the Apex Court in the abovementioned case.
The Petition filed by Sh. H.S. Bhullar, counsel for the Petitioner stated various grounds and powers of the High Court as prescribed under Article 226 and further raised various contentions during the first hearing of the Petition on 8th August 2017. The major contentions of the counsel for the Petitioner in his case was mainly that-
- The 6 months period as prescribed u/s 13 B(2) of the Hindu Marriage Act, 1955 is merely a directive provision and not a mandatory clause.
- Further, the parties have put themselves through a lot of hardships and the waiting period would only cause them undue harrasment.
- And finally, that the facts and circumstances mentioned in the case of Anil Kumar Jain v. Maya Jain, were very different to that in the present case.
Affiramations were made with regard to various precedents such as Badri v. Harbai, Anjana Kishore v. Puneet Kishore and Rakesh Harsukhbhai v. State of Maharashtra, which discussed the variations prevailing in the Apex Court judgment of Anil Kumar Jain v. Maya Jain.
Admist these hearings, a petition for the same was filed before the Hon’ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur in which the Hon’ble Division Bench consisting of Justice A.K. Goel and Justice U.U. Lalit, held on 12th September 2017 that the waiver of the waiting period in between the first motion and the second motion of the Mutual Divorce as presribed in the provisions of the Hindu Marriage Act, 1955 would be in the discretion of the concerned court.
The present petition was a challenge for the Hon’ble High Court as well since, the said petition was to be decided on merits and since the dual nature of the Interpretation of Statutes was also duly questioned by the counsel of the parties. It is pertinent to note that the contentions made by the counsel for the Petitioner, Sh. H.S. Bhullar in the Hon’ble Delhi High Court before Justice Midha has also been discussed in the recent judgment of the Hon’ble Apex Court in its judgment decided on 12th Septemeber 2017 which finally gave the power to the concerned court for the waiver of the period as prescribed u/s 13B(2) of the Hindu Marriage Act, 1955. Therefore taking the precedence of the abovementioned judgment of the Hon’ble Apex Court, the Delhi High Court, passed an order in favour of the parties on 15th September 2017 and directed the concerned family court to consider the waive off the period prescribed u/s 13B(2) of the Hindu Marriage Act, 1955.
