Only SC can waive 6 months off mutual divorce, and grant irretrievable breakdown divorce

This supreme court judgment of Sep 2009 is important on 2 counts:

1. It lays down the condition that only Supreme Court can grant divorce under Sec 142 of constitution on grounds of irretrievable breakdown of marriage. The High courts and lower courts do not have this power.

2. Only the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers.

If there were any doubts as to applicability of the said judgment to lower courts, here is a judgment of Punjab and Haryana High court which refers to above judgment and refuses to grant waiving of 6 months waiting period in mutual consent divorce.

Relevant extracts of the full SC judgment are given below:

17. In the ultimate analysis the aforesaid discussion throws

up two propositions. The first proposition is that although

irretrievable      break-down    of    marriage   is    not   one    of   the

grounds indicated whether under Sections 13 or 13-B of the

Hindu Marriage Act, 1955, for grant of divorce, the said

doctrine can be applied to a proceeding under either of the

said two provisions only where the proceedings are before the

Supreme Court. In exercise of its extraordinary powers under

Article 142 of the Constitution the Supreme Court can grant
relief to the parties without even waiting for the statutory

period    of   six   months     stipulated   in    Section   13-B    of   the

aforesaid Act. This doctrine of irretrievable break-down of

marriage is not available even to the High Courts which do

not have powers similar to those exercised by the Supreme

Court under Article 142 of the Constitution.                  Neither the

civil courts nor even the High Courts can, therefore, pass

orders    before     the    periods   prescribed    under    the    relevant

provisions of the Act or on grounds not provided for in

Section 13 and 13-B of the Hindu Marriage Act, 1955.

18. The    second     proposition     is   that   although    the   Supreme

Court can, in exercise of its extraordinary powers under

Article 142 of the Constitution, convert a proceeding under

Section 13 of the Hindu Marriage Act, 1955, into one under

Section 13-B and pass a decree for mutual divorce, without

waiting for the statutory period of six months, none of the

other Courts can exercise such powers.              The other Courts are

not competent to pass a decree for mutual divorce if one of

the consenting parties withdraws his/her consent before the

decree is passed.          Under the existing laws, the consent given

by the parties at the time of filing of the joint petition

for divorce by mutual consent has to subsist till the second

stage when the petition comes up for orders and a decree for

divorce is finally passed and it is only the Supreme Court,

which, in exercise of its extraordinary powers under Article
142   of    the   Constitution,     can    pass   orders    to   do    complete

justice to the parties.

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