Full Judgment Text
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PETITIONER:
SMT. SURESHTA DEVI
Vs.
RESPONDENT:
OM PRAKASH
DATE OF JUDGMENT07/02/1991
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
AGRAWAL, S.C. (J)
CITATION:
1992 AIR 1904 1991 SCR (1) 274
1991 SCC (2) 25 JT 1991 (1) 321
1991 SCALE (1)156
ACT:
Hindu Marriage Act, 1955: Section 13-B and
23(l)(bb)-Divorce by mutual consent-Filing of a petition
under section 13-B(1) does not by itself snap marital
ties-Parties are required to file a joint motion under
Section 13-B(2)-Joint Motion before the Court for hearing of
the petition should be ’of both the parties Mutual
consent should continue till passing of decree-A
spouse can unilaterally withdraw his consent
before passing of the divorce decree-Requirements of
Section 13-B explained-Expression ’living separately’ and
’have not been able to live together’-Scope and meaning
of.
Special Marriage Act, 1954: Section 28.
HEADNOTE:
The appellant-wife and the respondent-husband
filed a petition under section 13-B of the Hindu
Marriage Act, 1955 for divorce by mutual consent in
the District Court and their statements were
recorded. Subsequently, the appellant filed an
application in the Court for dismissal of the petition
stating that she was not willing to be a party to the
petition and that her statement was obtained under
threat and pressure of husband. The District Judge
dismissed the petition but on appeal the High Court
reversed the order of the District Judge and granted
a decree of divorce by holding that the consent to a
petition for divorce by mutual consent cannot be
unilaterally withdrawn and such a withdrawal would not
take away the jurisdiction of the Court, if the
consent was otherwise free; and since the wife’s
consent was without any force, fraud or undue
influence she was bound by the consent. Hence this
appeal by the wife.
Allowing the appeal and setting aside the decree of
divorce, this Court,
HELD: 1. An analysis of Section 13-B makes it
apparent that the filing of the petition under section 13-
B(l) with mutual consent does not authorise the Court
to make a decree for divorce. The parties are
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required to make a joint motion under sub-section (2)
which should not be earlier than six months after the
date of presentation of the petition
275
and not later than 18 months after the said date. This
motion enables the court to proceed with the case in order
to satisfy itself about the genuineness of the
averments in the petition and also to find out
whether the consent was not obtained by force, fraud
or undue influence. The Court may make such inquiry
as it thinks fit including the hearing or examination of
the parties for the purpose of satisfying itself
whether the averments in the petition are true. If the
Court is satisfied that the consent of the parties
was not obtained by force, fraud or undue influence
and they have mutually agreed that the marriage
should be dissolved, it must pass a decree of divorce.
[280D, 279C-D]
2. The period of waiting from 6 to 18 months
referred to in section 13-B(2) is intended to give time
and opportunity to the parties to reflect on their move
and seek advice from relations and friends. In this
transitional period one of the parties may have a second
thought and change the mind not to proceed with the petition
i.e. it may not be a party to the joint motion under sub-
section (2). This sub-section requires the court to hear
the Parties which means both the parties, But the section
does not provide that if there is a change of mind it should
not be by one Party alone, but by both. Therefore, if one
of the parties at that stage withdraws its consent the Court
cannot pass a decree of divorce by mutual consent. If the
Court is held to have the power to make a decree solely
based on the initial petition it negates the whole idea
of mutuality and consent for divorce. Mutua consent
to the divorce is a sine qua non for passing a decree
for divorce under section 13-B. Mutual consent should
continue till the divorce decree is Passed. it is a
positive requirement for the Court to Pass a decree of
divorce. [280D, 281A.B]
K.I. Mohanan v. Jeejabai, A.I.R. 1988 Ker. 28;
Harcharan Kaur v. Nachhattar Singh, A.I.R. 1988 P &
H. 27 and Santosh Kumari v. Virendra Kumar, A.I.R.
1986 Raj. 128; approved.
Jayashree Ramesh Londhe v. Ramesh Bhikaji
Londhe, A.I.R. 1984 Bom. 302; Smt. Chander Kanta
v. Hans Kumar and Anr., A.I.R. 1989 De. 4 73; and
Meena Dutta v. Anirudh Dutta, 1984 11 DMC 388 (MP);
overruled.
Halsbury Laws of England, 4th Edn. Vol. 13 para
645; Rayden on Divorce, 12 Edn- Vol 1 p. 291 and Beales
v. Beales, 1972 2 All E.R. 667; referred to.
3. Section 13-B of the Hindu Marriage Act is in para
materia with
276
Section 28 of the Special Marriage Act, 1954. Sub-Section
(1) of section 13-B requires that the petition for divorce
by mutual consent must be presented to the Court jointly by
both the parties. There are three other requirements in
sub-section (1). Firstly, it is necessary that immediately
preceding the presentation of the petition the parties must
have been living separately for a period of one year or
more. The expression ’living separately’ connotes not
living like husband and wife. It has no reference to the
place of living. The parties may live under the same roof
by force of circumstances, and yet they may not be living as
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husband and wife. The parties may be living in different
houses and yet they could live as husband and wife. What
seems to be necessary is that they have no desire to perform
marital obligations and with that mental attitude they have
been living separately for a period of one year immediately
preceding the presentation of the petition. The second
requirement is that they ’have not been able to live
together’ which indicates the concept of broken down
marriage and it would not be possible to reconcile
themselves. The third requirement is that they have
mutually agreed that the marriage should be dissolved.
[278E-H, 279A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 633 of
1991.
From the Judgment and Order dated 1.8.1989 of the
Himachal Pradesh High Court in F.A.0. (H.M.A.) No. 28 of
1989.
Dhruv Mehta, Aman Vachher and S.K. Mehta for the
Appellant.
Subhagmal Jain and H.K. Puri for the Respondent.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. Special Leave granted.
This appeal from a decision of the Himachal Pradesh
High Court concerns the validity of a decree of dissolution
of marriage by mutual consent, and is said, probably
rightly, to raise an important issue. The issue is whether
a party to a petition for divorce by mutual consent under
Section 13B of the Hindu Marriage Act, 1955 (’Act’) can
unilaterally withdraw the consent or whether the consent
once given is irrevocable.
The appellant is the wife of the respondent. They were
married on 21 November 1968. They lived together for about
six to seven
277
months. Thereafter, it is said that the wife did
not stay with the husband except from 9 December
1984 to 7 January 1985. That was pursuant to
an order of the Court, but it seems that they
did not live like husband and wife during that
period also. On 8 January 1985, both of them came
to Hamirpur. The wife was accompanied by her
counsel, Shri Madan Rattan. After about an hour
discussion, they moved a petition under Section 13-B
for divorce by mutual consent in the District
Court at Hamirpur. On 9 January 1985, the
Court recorded statements of the parties and left the matter
there.
On 15th January 1985, the wife filed an
application in the Court, inter alia, stating that her
statement dated 9 January 1985 was obtained under pressure
and threat of the husband and she was not
even allowed to see or meet her relations to consult
them before filing the petition for divorce. Nor they
were permitted to accompany her to the Court. She
said that she would not be party to the petition
and prayed for its dismissal. The District Judge made
certain orders which were taken up in appeal
before the High Court and the High Court
remanded the matter to the District Judge for
fresh disposal. Ultimately, the District Judge
dismissed the petition for divorce. But upon appeal
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the High Court has reversed the order of the
District Judge and granted a decree for dissolution
of the marriage by mutual consent. The High Court
has observed that the spouse who has given consent
to a petition for divorce cannot unilaterally
withdraw the consent and such withdrawal however,
would not take away the jurisdiction of the Court to
dissolve the marriage by mutual consent, if the consent was
otherwise free. The High Court also recorded a finding that
the wife gave her consent to the petition without any force,
fraud or undue influence and therefore she was bound by that
consent.
Section 13-B was not there in the original Act.
It was introduced by the Amending Act 68 of 1976. Section
13-B provides:
13-B(l) Subject to the provisions of the 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 solemnized before or after the
commencement of the Marriage Laws
(Amendment) Act, 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.
278
(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 solemnized 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."
It is also necessary to read Section 23(l)(bb):
23(1) In any proceeding under this Act,
whether defended or not, if the Court is satisfied
that-
(bb) When a divorce is sought on the
ground of mutual consent, such consent
has not been obtained by force, fraud or
undue influence, and ....."
Section 13-B is in pari materia with Section 28
of the Special Marriage Act, 1954. Sub-section (1)
of Section 13-B requires that the petition for
divorce by mutual consent must be presented to the
Court jointly by both the parties. Similarly, sub-
section (2) providing for the motion before the
Court for hearing of the petition should also be
by both the parties.
There are three other requirements in sub-section
(1). There are:
(i) They have been living separately for a period of
one year.
(ii) They have not been able to live together, and
(iii) They have mutually agreed that marriage should be
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dissolved.
The ’living separately’ for a period of one year should
be immediately preceding the presentation of the petition.
It is necessary that immediately preceding the presentation
of petition, the parties must have been living separately.
The expression ’living separately’, connotes to our mind not
living like husband and wife. It has no reference to the
place of living. The parties may live under the same roof
by force of circumstances, and yet they may not be living as
279
husband and wife. The parties may be living in
different houses and yet they could live as husband
and wife. What seems to be necessary is that they
have no desire to perform marital obligations
and with that attitude they have been living
separately for a period of one year immediately
preceding the presentation of the petition. The second
requirement that they ’have not been able to live
together’ seems to indicate the concept of broken
down marriage and it would not be possible to
reconcile themselves. The third requirement is that
they have mutually agreed that the marriage should be
dissolved.
Under sub-section (2) the parties are required
to make a joint motion not earlier than six months
after the date of presentation of the petition and
not later than 18 months after the said date. This
motion enables the Court to proceed with the case
in order to satisfy itself about the genuineness of
the averments in the petition and also to find out
whether the consent was not obtained by force,
fraud or undue influence. The Court may make such
inquiry as it thinks fit including the hearing or
examination of the parties for the purpose of
satisfying itself whether the averments in the petition
are true. If the Court is satisfied that the consent
of parties was not obtained by force, fraud or undue
influence and they have mutually agreed that
the marriage should be dissolved, it must pass a decree of
divorce.
The question with which we are concerned is
whether it is open to one of the parties at any time
till the decree of divorce is passed to withdraw the
consent given to the petition. The need for a
detailed study on the question has arisen because of
the fact that the High Courts do not speak with
one voice on this aspect. The Bombay High Court
in Jayashree Ramesh Londhe v. Ramesh Bhikaji
Londhe, AIR 1984 Bom. 302, has expressed the view
that the crucial time for the consent for divorce
under Section 13-B was the time when the petition
was filed. If the consent was voluntarily given it
would not be possible for any party to nullify the
petition by withdrawing the consent. The court has
drawn support to this conclusion from the principle
underlying Order XXIII Rule 1 of the Code of Civil
Procedure which provides that if a suit is filed jointly
by one or more plaintiffs, such a suit or a part of
a claim cannot be abandoned or withdrawn by one
of the plaintiffs or one of the parties to the
suit. The High Court of Delhi adopted similar line
of reasoning in Smt. Chander Kanta v. Hans
Kumar and Anr., AIR 1989 Delhi 73 and the
Madhya Pradesh High Court in Meena Dutta v. Anirudh
Dutta, [1984] 11 DMC 388 also took a similar view
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280
But the Kerala High Court in K.L Mohanan v. Jeejabai,
AIR 1988 Kerala 28 and the Punjab and Haryana High Court in
Harcharan Kaur v. Nachhattar Singh, AIR 1988 Punjab &
Haryana 27 and Rajasthan High Court in Santosh Kumari v.
Virendra Kumar, AIR 1986 Rajasthan 128 have taken a contrary
view. It has been inter alia, held that it is open to one
of the spouses to withdraw the consent given to the petition
at any time before the Court passes a decree for divorce.
The satisfaction of the Court after holding an inquiry about
the genuineness of the consent, necessarily contemplates an
opportunity for either of the spouses to withdraw the
consent. The Kerala High Court in particular has ruled out
the application of analogy under Order XXIII Rule I of the
Code of Civil Procedure since it is dissimilar to the
situation arising under Section 13-B of the Act.
From the analysis of the Section, it will be apparent
that the filing of the petition with mutual consent does not
authorise the court to make a decree for divorce. There is
a period of waiting from 6 to 18 months. This interregnum
was obviously intended to give time and opportunity to the
parties to reflect on their move and seek advice from
relations and friends. In this transitional period one of
the parties may have a second thought and change the mind
not to proceed with the petition. The spouse may not be
party to the joint motion under sub-section (2). There is
nothing in the Section which prevents such course. The
Section does not provide that if there is a change of mind
it should not be by one party alone, but by both. The High
Courts of Bombay and Delhi have proceeded on the ground that
the crucial time for giving mutual consent for divorce is
the time of filing the petition and not the time when they
subsequently move for divorce decree. This approach appears
to be untenable. At the time of the petition by mutual
consent, the parties are not unaware that their petition
does not by itself snap marital ties. They know that they
have to take a further step to snap marital ties. Sub-
section (2) of Section 13-B is clear on this point. It
provides that "on the motion of both the parties .... if the
petition is not withdrawn in the meantime, the Court shall
pass a decree of divorce What is significant in this
provision is that there should also be mutual consent when
they move the court with a request to pass a decree of
divorce. Secondly, the Court shall be satisfied about the
bonafides and the consent of the parties. If there is no
mutual consent at the time of the enquiry, the court gets no
jurisdiction to make a decree for divorce. If the view is
otherwise, the Court could make an enquiry and pass a
divorce decree even at the instance of one of the parties
and against the consent of the other. Such a decree cannot
be regarded as decree by mutual consent.
281
Sub-section (2) requires the Court to hear the parties
which means both the parties. If one of the parties at
that stage says that "I have withdrawn my consent",
or "I am not a willing party to the divorce",
the Court cannot pass a decree of divorce by mutual
consent. If the Court is held to have the power to make a
decree solely based on the initial petition, it negates
the whole idea of mutualitly and consent for divorce.
Mutual consent to the divorce is a sine qua non for
passing a decree for divorce under Section 13-B.
Mutual consent should continue till the divorce decree is
passed. It is a positive requirement for the court
to pass a decree of divorce. "The consent must
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continue to decree nisi and must be valid subsisting
consent when the case is heard". [See (i) Halsbury
Laws of England, Fourth Edition Vol. 13 para 645; (ii)
Rayden on Divorce, 12th Ed. Vol. 1 p. 291 and (iii)
Beales v. Beales, [ 1972] 2 All E. R. 667 at 674].
In our view, the interpretation given to the
section by the High Courts of Kerala, Punjab &
Haryana and Rajasthan in the aforesaid decisions
appears to be correct and we affirm that view. The
decisions of the High Courts of Bombay, Delhi and
Madhya Pradesh (supra) cannot be said to have laid
down the law correctly and they stand overruled.
In the result, we allow the appeal and set aside
the decree for dissolution of the marriage. In the
circumstances of the case, however, we make on order as
to costs.
T.N.A. Appeal allowed.
282