Family Courts Lack Jurisdiction to Convert Adversarial Divorce Petitions into Mutual Consent Decrees Under Section 13B

The parties married on 26.01.2023 and separated in January 2024

The respondent-husband filed a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act (HMA) on grounds of cruelty

The appellant-wife filed a written statement and a counter-claim under Section 23A of the HMA, also seeking divorce on the ground of cruelty by the husband

On 18.03.2025, the Family Court, noting that both parties sought divorce, converted the contested proceedings into a mutual consent proceeding and dissolved the marriage under Section 13B of the HMA on the same day the pleadings were taken on record

The appellant challenged this, arguing the court lacked jurisdiction to convert contested proceedings into a mutual decree without a joint petition or compliance with statutory cooling-off periods

The court applied Section 13 of the HMA regarding fault-based divorce and Section 13B regarding divorce by mutual consent, emphasizing that the former is adversarial while the latter requires a joint petition "by both the parties together" and a second motion after a statutory interregnum to ensure "mutual agreement"

The power to waive statutory periods or convert Section 13 proceedings into Section 13B is an extraordinary power under Article 142 of the Constitution reserved exclusively for the Supreme Court as held in Anil Kumar Jain v. Maya Jain (2009)

Coordinate Bench decision in Upinder Kaur Malhotra v. Teghjeet Singh Malhotra (2025), establishing that rival fault-based claims do not constitute the "meeting of minds" required for mutual consent

The High Court reasoned that Sections 13 and 13B of the HMA operate in distinct fields: fault-based versus consensus-based

The court observed that the Family Court erred by assuming that rival allegations of cruelty—where both parties want "out" but on different terms and accusations—could substitute for the joint, voluntary agreement required by Section 13B

The High Court noted that the mandatory requirements of a joint petition, a first motion, and a second motion after six months are substantive safeguards to ensure consent is informed and continuous

Section 10(3) of the Family Courts Act provides procedural flexibility but does not empower a judge to override the substantive requirements of the HMA

By converting the matter, the Family Court effectively deprived the parties of the opportunity to lead evidence and adjudicate ancillary reliefs like permanent alimony under Section 25

The High Court set aside the impugned judgment and decree dated 18.03.2025, restored the original petition and counter-claim under Section 13(1)(ia), and directed the Family Court to adjudicate the matter on its merits after framing issues and allowing evidence, with parties directed to appear on 14.07.2026