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2016 DIGILAW 545 (UTT)

Chandra Shekar Malhotra v. Nishu Manchanda

2016-09-05

V.K.BIST

body2016
JUDGMENT : V.K. Bist, J. Since these two writ petitions raise common questions of law, I am disposing of the same by common judgment. 2. Petitioner, in Writ Petition (M/S) No. 2431 of 2016, calls in question the order dated 13.07.2016 passed by the learned Judge, Family Court, District Udham Singh Nagar in Civil Case No. 306 of 2016, whereby the case filed by the petitioner as well as by the respondent under Section 13 (B) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) for grant of decree of divorce on mutual consent has been registered and the matter is fixed for hearing on 18.01.2017, which is after the statutory period of six months of waiting. He also seeks a direction to the learned Judge, Family Court, District Udham Singh Nagar to waive off the statutory period of six months, as prescribed under Section 13(B) of the Act, and the petition filed by the petitioner as well as by the respondent for grant of divorce on mutual consent may be allowed. Petitioners, in Writ Petition (M/S) No. 2433 of 2016, challenges the order dated 04.08.2016 passed by the learned Judge, Family Court, District Udham Singh Nagar in Case No. 240 of 2016, whereby the joint application filed by the petitioners under Section 13(B) of the Act has been dismissed and the matter is fixed for hearing on 07.12.2016, which is after the statutory period of six months of waiting. 3. Heard Mr. Sandeep Kothari, learned counsel appearing for the petitioner in Writ Petition (M/S) No. 2431 of 2016 and Mr. Vikas Anand, learned counsel appearing for the petitioners in Writ Petition (M/S) No. 2433 of 2016. Writ Petition (M/S) No. 2431 of 2016: 4. Marriage of the petitioner was solemnized with the respondent on 25.02.2015. Soon after the marriage, the petitioner as well as the respondent realized that there are material differences between them and, on 25.03.2015, the respondent left the company of the petitioner. Thereafter, several rounds of talk for settlement were made, but of no avail. On 13.07.2016, the petitioner as well as the respondent filed a case for grant of divorce on mutual consent in the Court of Judge, Family Court, District Udham Singh Nagar. Thereafter, several rounds of talk for settlement were made, but of no avail. On 13.07.2016, the petitioner as well as the respondent filed a case for grant of divorce on mutual consent in the Court of Judge, Family Court, District Udham Singh Nagar. The learned Judge, Family Court, District Udham Singh Nagar, vide his order dated 13.07.2016, directed to register the case filed by the petitioners for grant of decree of divorce on mutual consent under Section 13(B) of the Act and fixed the matter for hearing on 18.01.2017, which is after the statutory period of six months of waiting. Hence, the Writ Petition (M/S) No. 2431 of 2016 has been filed by the petitioner. Writ Petition (M/S) No. 2433 of 2016: 5. The marriage of the petitioners was solemnized with each other on 08.05.1992. Few years after the marriage, serious differences and incompatibility surfaced between them and all attempts of settlement by the family members failed. Petitioners stopped living together since 2011 and, thereafter, petitioners filed a case for grant of divorce on mutual consent in the Court of Judge, Family Court, District Udham Singh Nagar. The learned Judge, Family Court, District Udham Singh Nagar, vide his order dated 04.08.2016, rejected the joint application filed by the petitioners and fixed the matter for hearing on 07.12.2016, which is after the statutory period of six months of waiting. Hence, Writ Petition (M/S) No. 2433 of 2016 is before this Court. 6. In Writ Petition (M/S) No. 2431 of 2016, the case of the petitioner is that the spouses have agreed that it is not possible for them to remain under the matrimonial relationship, inasmuch as, due to such relationship both the spouses are in continuous mental pressure and, as such, have agreed to severe the relationship on their free will, without there being any undue pressure. Shri Sandeep Kothari, learned counsel for the petitioner prayed that the order dated 13.07.2016 passed by the learned Judge, Family Court, District Udham Singh Nagar in Civil Case No. 306 of 2016 may be set-aside and the statutory period of six months, as prescribed under Section 13(B) of the Act, may be waived off and the petition filed by the petitioner as well as by the respondent for grant of divorce on mutual consent be allowed. 7. 7. In Writ Petition (M/S) No. 2433 of 2016, the case of the petitioners is that incompatibility with each other made it difficult for them to co-exist and they stopped cohabiting as husband and wife from 2011. Shri Vikas Anand, learned counsel for the petitioners submitted that there was no force or coercion between the petitioners in filing the petition for divorce by mutual consent. He prayed that the order dated 04.08.2016 passed by the learned Judge, Family Court, District Udham Singh Nagar in Civil Case No. 240 of 2016 may be set-aside and the statutory period of six months, as prescribed under Section 13(B) of the Act, may be waived off. In support of their contention, the learned counsel appearing for the petitioners relied on the law laid down by the Hon’ble Apex Court in its judgment dated 04.08.2016 in an Interlocutory Application in the case of ‘Aditi Wadhera Vs. Vivek Kumar Wadhera’. They also relied on the judgment passed by this Court in the matter of Smt. Mamta Bhatt vs. Atul Bhatt (First Appeal No. 21 of 2011) decided on 01.04.2011 and in the matter of Smt. Nidhi Sharma vs. Saurabh Kumar Agarwal, reported in 2011 (1) U.D. 50 , whereby the Division Bench of this Court, by relying on the judgments AIR 1986 A.P. 167 , AIR 1988 Guj. 159 , AIR 1994 Karn. 12, AIR 1990 Del. 146 and AIR 2006 Del. 18 , took a view that provisions contained in sub-section 2 of Section 13(B) of the Act is directory in nature and in exceptional circumstances, the period requiring to wait for six months can be waived by the High Court. 8. I have considered the submissions of the learned counsel appearing for the petitioners and have perused the orders impugned. 9. Considering the case, first of all, Section 13(B) of the Act is referred: “[3B. Divorce by mutual consent. 8. I have considered the submissions of the learned counsel appearing for the petitioners and have perused the orders impugned. 9. Considering the case, first of all, Section 13(B) of the Act is referred: “[3B. Divorce by mutual consent. (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they 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. (2) 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, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]” 10. Sub-section (1) of Section 13(B) of the Act provides that application for divorce by mutual consent can be moved by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. Sub-section (1) of Section 13-B of the Act is enabling section for presenting a petition for dissolution of a marriage by a decree of divorce by mutual consent. 11. Sub-section (2) of Section 13-B of the Act provides the procedural steps and puts very important condition. According to sub-section (2) of Section 13-B of the Act, an application filed for divorce by mutual consent can only be allowed after six months and before 18 months of its presentation. It appears that this condition has been put by the legislature after giving it due thought. Time is the best healer. According to sub-section (2) of Section 13-B of the Act, an application filed for divorce by mutual consent can only be allowed after six months and before 18 months of its presentation. It appears that this condition has been put by the legislature after giving it due thought. Time is the best healer. Six months’ time is such a reasonable time within which every type of wound is healed. Six months’ time is sufficient for removing misunderstanding between husband and wife, forgiving each other for such statement, which had hurt the sentiments of one of the parties and, lastly, this period is also sufficient for forgetting bad things, which had happened between husband and wife. Decision taken by husband and wife for dissolution of marriage by mutual consent cannot be said a small decision. It may have far reaching consequences. If they have small children, their future is also involved. By separation, the children are not only deprived of love and affection, but also of care, which generally they get from their parents. They have to face many queries from the people, which they would not like to answer. Their career and future also becomes uncertain. Even the life of the divorced couple is also changed. Marriage in Hindus is treated as sacrament. Most of the Hindu do not believe in the concept of divorce, as it is said that married couple will remain husband and wife for seven lives. In view of all these facts, in my view, the restriction of six months put by the legislature is a quite reasonable restriction and has been kept in the interest of married couple. To get separated for whole life, is one of the toughest decision, which husband and wife takes. Such decision must not be taken in a hurry. 12. Generally, it is found that, while considering application under Section 13-B of the Act, Family Courts do not take any initiation/step for mediation between husband and wife. Court simply goes through the affidavits of the parties, waits for 6 months and then makes enquiry from the parties and grants divorce by mutual consent. 13. Question for determination before this Court is whether Family Court, while dealing application under Section 13-B of the Act, or the High Court, in appeal, can waive the period of six months, which has been provided in Section 13-B(2) of the Act. 14. 13. Question for determination before this Court is whether Family Court, while dealing application under Section 13-B of the Act, or the High Court, in appeal, can waive the period of six months, which has been provided in Section 13-B(2) of the Act. 14. The question of waiving six months period came before the Hon’ble Supreme Court in many cases. The Hon’ble Supreme Court has categorically held that neither the Civil Courts nor even the High Courts can pass orders before the periods prescribed under the relevant provisions of the Act or the grounds not provided for in Section 13 and 13-B of the Act. In few cases, the Hon’ble Supreme Court held that only the Supreme Court, in exercise of its extraordinary powers, under Article 142 of the Constitution of India, can grant divorce even before the expiry of six months in order to do complete justice to the parties. Few judgments of the Hon’ble Supreme Court on this point are being referred hereinafter: In Anjana Kishore vs. Puneet Kishore, reported in (2002) 10 SCC 194, the Hon’ble Apex Court has held as follows: “3. In view of the developments which have taken place during the pendency of proceedings in this Court, we decline to transfer the case from the Family Court at Bandra, Mumbai to the Family Court at Saharanpur. We, however, direct that as agreed to by learned counsel for the parties, a joint petition shall be filed by the parties before the Family Court at Bandra, Mumbai for grant of divorce by mutual consent. Terms of compromise as filed before us shall also accompany the joint petition. An application for curtailment of time for grant of divorce shall also be filed along with the joint petition. On such application being moved the Family Court may, dispensing with the need of waiting for six months, which is required otherwise by sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955, pass final order on the petition within such time as it may deem fit. This direction we are making under Article 142 of the Constitution, as looking at the facts and circumstances of the case emerging from pleadings of the parties and disclosed during the course of hearing, we are satisfied of the need of making such a direction to do complete justice in the case. This direction we are making under Article 142 of the Constitution, as looking at the facts and circumstances of the case emerging from pleadings of the parties and disclosed during the course of hearing, we are satisfied of the need of making such a direction to do complete justice in the case. The parties shall present themselves before the learned Presiding Officer, Family Court at Bandra, Mumbai on 17-9-2001 when the learned Presiding Judge shall take further appropriate steps. In Anil Kumar Jain vs. Maya Jain, reported in (2009) 10 SCC 415 , the Hon’ble Apex Court has held as follows: “29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown 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 the grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.” In Kiran vs. Sharad Dutt, reported in (2000) 10 SCC 243 , the Hon’ble Apex Court has held as follows: “3. During the pendency of the proceedings at SLP stage there was a development by which the parties agreed to get divorce by mutual consent. The matter was therefore, adjourned. We are happy to note that the consent terms came to be filed on these lines duly signed by the appellant-wife as well as the respondent-husband and also by their Advocates-on-Record. We have gone through I.A. No.3 of 1999 which has been jointly moved by both the parties for getting a decree of divorce by mutual consent. We are happy to note that the consent terms came to be filed on these lines duly signed by the appellant-wife as well as the respondent-husband and also by their Advocates-on-Record. We have gone through I.A. No.3 of 1999 which has been jointly moved by both the parties for getting a decree of divorce by mutual consent. In our view, the terms suggested are quite fair. We find that both the parties are living separately since years and they are not in a position to see eye to eye and live together. They are not blessed with any child. Therefore, the prayer in original Hindu Marriage Petition No.584 of 1988 which was for divorce on the ground of alleged desertion and cruelty by wife and also under Section 11 of the Hindu Marriage Act wherein the respondent-husband sought a decree for nullity on the ground that there was no custom of marriage between the first cousins would no longer survive. The prayer in I.A. No.3 of 1999 for permitting the parties to amend the Hindu Marriage Petition is allowed in terms of para 3 of the I.A. We grant amendment to the divorce petition by treating it to be one under Section 13B of the Hindu Marriage Act, 1955. The proceedings between the husband and wife for dissolution of marriage are pending since 11 years. On the fact of the case, there is no necessity to further delay the passing of the decree for divorce by mutual consent. We therefore, in exercise of our power under Article 142 of the Constitution of India accept the consent terms filed by the parties and direct that a decree for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 be passed in this case. The agreement regarding payment of permanent alimony and monthly maintenance as laid down in paragraph 2(a) to (d) shall form part of the decree for dissolution of marriage by mutual consent. The judgments and decrees of the High Court and trial court are set aside. The Hindu Marriage Petition will stand allowed in terms of prayer for divorce by mutual consent. The appeal is disposed of accordingly. No costs.” In Swati Verma (Smt) vs. Rajan Verma and others, reported in (2004) 1 SCC 123 , the Hon’ble Apex Court observed as follows: “6. The Hindu Marriage Petition will stand allowed in terms of prayer for divorce by mutual consent. The appeal is disposed of accordingly. No costs.” In Swati Verma (Smt) vs. Rajan Verma and others, reported in (2004) 1 SCC 123 , the Hon’ble Apex Court observed as follows: “6. Pursuant to the compromise deed, an application has been filed before this Court under Section 13(B) of the Hindu Marriage Act and under Article 142 of the Constitution praying that this Court may exercise its extraordinary jurisdiction under Article 142 of the Constitution and dissolve the marriage by a decree of divorce by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976. The petitioner and Respondent No. 1 have stated in the said application that their marriage has broken down irretrievably and there is no chance of their living together, and therefore they have mutually agreed that the marriage should be dissolved. It is further declared that mutual consent has not been obtained by force, fraud or inducement. 7. Having perused the records placed before us we are satisfied that the marriage between the parties has broken down irretrievably and with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, we allow the application for divorce by mutual consent filed before us under Section 13(B) of Hindu Marriage Act and declare that the marriage solemnized between the consenting parties on 13th June, 2001 at Delhi is hereby dissolved, and they are granted a decree of divorce by mutual consent.” In para 27 of Durga Prasanna Tripathy vs. Arundhati Tripathy, reported in (2005) 7 SCC 353 , the Hon’ble Apex Court passed the following order: “27. The decision reported in Romesh Chander vs. Savitri AIR 1995 SC 851 : 1995 AIR SCW 647 is yet another case where this Court in its powers under Article 142 of the Constitution directed the dissolution of the marriage subject to the transfer of the house of the husband in the name of the wife. The decision reported in Romesh Chander vs. Savitri AIR 1995 SC 851 : 1995 AIR SCW 647 is yet another case where this Court in its powers under Article 142 of the Constitution directed the dissolution of the marriage subject to the transfer of the house of the husband in the name of the wife. In that case, the parties had not enjoyed the company of each other as husband and wife for 25 years, this is the second round of litigation which routing through the trial court and the High Court has reached the Supreme Court. The appeal was based on cruelty. Both the Courts below have found that the allegation was not proved and consequently it could not be made the basis for claiming divorce. However, this Court after following the earlier decisions and in exercise of its power under Article 142 of the Constitution directed the marriage between the appellant and the respondent shall stand dissolved subject to the appellant transferring the house in the name of his wife within four months from the date of the order and the dissolution shall come into effect when the house is transferred and possession is handed over to the wife.” Paragraphs 17, 18, 19 & 20 of Sanghamitra Ghosh vs. Kajal Kumar Ghosh, reported in (2007) 2 SCC 220 are being quoted below: “17. We have heard learned counsel for the parties. This Court adjourned the proceedings from time to time to ensure that the parties may reconcile the differences and live together again, but this has not happened. It is indeed the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained. But as aptly observed by this Court, in a recent decision in Naveen Kohli v. Neelu Kohli, reported in (2006) 4 SCC 558 , that when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. 18. In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. 18. In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli’s case (supra). 19. In view of peculiar facts and circumstances of this case, we consider it appropriate to exercise the jurisdiction of this Court under Article 142 of the Constitution. 20. In order to ensure that the parties may live peacefully in future, it has become imperative that all the cases pending between the parties are directed to be disposed of. According to our considered view, unless all the pending cases are disposed of and we put a quietus to litigation between the parties, it is unlikely that they would live happily and peacefully in future. In our view, this will not only help the parties, but it would be conducive in the interest of the minor son of the parties.” In Satish Sitole vs. Ganga (Smt), reported in (2008) 7 SCC 734 , the Hon’ble Apex Court has held as follows: “12. The power vested in this Court under Article 142 of the Constitution was also exercised in–(i) Anjana Kishore vs. Puneet Kishore, (2002) 10 SCC 194; (ii) Swati Verma vs. Rajan Verma and ors., (2004) 1 SCC 123 ; and (iii) Durga Prasanna Tripathy vs. Arundhati Tripathy, (2005) 7 SCC 352 . Of the three aforesaid cases, in the first two cases orders passed were on Transfer Petitions where ultimately the parties agreed to divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. Resorting to the powers reserved to this Court under Article 142, decrees of divorce were granted to put a quietus to all litigations pending between the parties on the ground that their marriages had broken down irretrievably. Resorting to the powers reserved to this Court under Article 142, decrees of divorce were granted to put a quietus to all litigations pending between the parties on the ground that their marriages had broken down irretrievably. In the last of the three cases, while holding that the marriage had broken down irretrievably, this Court affirmed the decree of divorce passed by the Family Court, but directed payment of alimony to the extent of Rs.1,50,000/-. 13. Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. 14. In the said circumstances, following the decision of this Court in Romesh Chander’s case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved, subject to the appellant paying to the respondent a sum of Rupees Two lakhs by way of permanent alimony. In addition, the appellant shall also pay the costs of this appeal to the respondent, assessed at Rs.25,000/-.The appeal is disposed of accordingly.” In Vimi Vinod Chopra vs. Vinod Gulshan Chopra, reported in (2013) 15 SCC 547 also, the Hon’ble Apex Court exercised power under Article 142 of the Constitution of India in the following manner: “6. Since the parties have settled their disputes amicably and of their own free will, we are satisfied that the memorandum of settlement dated 17-7-2013 may be accepted by us as it is in the interest of the parties as well as the three minor children. We order accordingly. 7. Since the parties have also agreed for annulment of their marriage, we are satisfied that this is a fit case where we may exercise our jurisdiction under Article 142 of the Constitution of India to give quietus to the multiple disputes between them as this will enable complete justice between the parties. We order accordingly. 7. Since the parties have also agreed for annulment of their marriage, we are satisfied that this is a fit case where we may exercise our jurisdiction under Article 142 of the Constitution of India to give quietus to the multiple disputes between them as this will enable complete justice between the parties. Consequently, we waive the statutory period and pass the decree of divorce under Section 13-B of the Hindu Marriage Act, 1955. As a result of this, the marriage solemnized between the parties on 7-8-1993 stands dissolved.” In Aditi Wadhera vs. Vivek Kumar Wadhera (Transfer Petition (c) No. 569 of 2014) also (which has been relied by the counsel for the petitioners), the Hon’ble Supreme Court granted decree of divorce by mutual consent by waiving the statutory period of waiting. Paragraphs 6 & 7 of the judgment are being referred hereinafter: “6. Aditi Vivek Kumar Wadhera, wife and Vivek Kumar Varinder Wadhera-husband are present before the Court. It is submitted that they have lived as husband and wife only for a few days in the year 2010. Both parties have exercised their free will and have taken a conscious decision to part and put an end to all other litigation as well. They have also filed a joint petition for dissolution of marriage by mutual consent under Section 13B of the Hindu Marriage Act before the District Court. 7. Having regard to the background of the several litigations between the parties over a period of five years, background of the parties living separately for more than five years, submission of Mr. Vivek Kumar Varinder Wadhera that he has to go back to his work place in U.S.A and also having regard to the submission of Aditi Vivek Kumar Wadhera that she has now to think of her future, we are of the view that it is a fit case to invoke our jurisdiction under Article 142 of the Constitution of India and grant a decree of divorce by mutual consent by waiving the statutory period of waiting.” 15. But, in Vishnu Dutt Sharma vs. Manju Sharma, reported in (2009) 6 SCC 379 , the Hon’ble Apex Court in detail, considered the scope of Section 13 of the Act in the following manner: “9. But, in Vishnu Dutt Sharma vs. Manju Sharma, reported in (2009) 6 SCC 379 , the Hon’ble Apex Court in detail, considered the scope of Section 13 of the Act in the following manner: “9. Section 13 of the Act reads as under: “13.Divorce—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. (iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.” 10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. 11. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. 12. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. 12. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant. Had both the parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13B of the Act, but in this case the respondent is not willing to agree to a divorce. For the aforesaid reasons, this appeal is dismissed. No order as to costs.” 16. Further, in Neeti Malviya vs. Rakesh Malviya, reported in (2010) 6 SCC 413 , the Hon’ble Supreme Court has referred the question regarding waving or reducing the period prescribed in sub-section (2) of Section 13-B of the Act for the consideration of a Bench of three Hon’ble Judges. Paragraph nos. 10, 11, 12 & 13 of the said judgment are being quoted below: “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 Jain, 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 (2002) 10 SCC 194: (2009) 10 SCC 415 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., Allahabad, wherein it was held that an order which this Court can make in order to do complete justice between the AIR 1963 SC 996 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. 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. 13. Accordingly, we refer the following question for the consideration of a Bench of three Hon’ble Judges:- (I) Whether the period prescribed in subsection (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?” 17. By reading section 13-B of the Act carefully, this Court finds that the section in itself is very clear. It nowhere provides exceptional circumstances where statutory period of six months can be waived. In my view, till this provision exists in the Act, the High Court and Family Court has no power to waive the statutory period of six months. Further, in the matter of Anil Kumar Jain vs. Maya Jain, the Hon’ble Supreme Court has categorically held that neither Civil Courts nor even the High Courts can pass orders before prescribed period under the relevant provision of the Act. Therefore, in no case, the trial Court or the High Court has any power to waive the statutory period of six months, as provided under Section 13-B of the Act. The Family Courts have not committed any illegality in passing the impugned orders. Same are upheld. 18. Therefore, in no case, the trial Court or the High Court has any power to waive the statutory period of six months, as provided under Section 13-B of the Act. The Family Courts have not committed any illegality in passing the impugned orders. Same are upheld. 18. Now, this Court, in short, is dealing the argument raised by the counsel for the petitioners that in the matter of Smt. Mamta Bhatt vs. Atul Bhatt and Smt. Nidhi Sharma vs. Saurabh Kumar Agarwal, Division Bench of this Court took a view that provision contained in sub-section 2 of Section 13 of the Act is directory in nature and, in exceptional circumstances, the period requiring to wait for six months can be waived by the High Court. In view of this Court, the said judgments of the Division Bench of this Court cannot be followed, as same being per incuriam of the decision of the Hon’ble Supreme Court in the case of Anil Kumar Jain vs. Maya Jain reported in (2009) 10 SCC 415 . 19. In view of above discussion, both writ petitions are dismissed. 20. No order as to costs. 21. Let a copy of this judgment be kept in connected petition.