Jun 23, 2021 17:09 UTC
Jun 23, 2021 at 17:09 UTC
Case Study: Smt. Sureshta Devi v. Om Prakash
Citation: (1991) 2 SCC 25
Date of Judgement: 7th February, 1991
Bench: K. Jagannatha Shetty (J), S. C. Agrawal (J)
The appellant is the wife of the respondent. They were married on 21 November 1968 and lived together for about six to seven months. After that, they only lived together in pursuant to the court order, from 9 December 1984 to 7 January 1985, but in this period also they did not live like husband and wife. On 8 January 1985, both of them came to Hamirpur and moved a petition under Section 13-B of The Hindu Marriage Act of 1955, 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.
But the consent was withdrawn by A, by filing an application in District Court on 15 January 1985. Therefore, the District Court dismissed the petition. However, the High Court reversed the District Court order and granted the decree for dissolution of 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. Such withdrawal would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent if the consent was otherwise free.
Thus, this appeal came to the Supreme Court from the decision of the Himachal Pradesh High Court.
There were two different voices of High Courts relating to the same issue. Therefore the Supreme Court has done a detailed study by discussing both the views.
View of the High Court of Himachal Pradesh, Bombay, Madhya Pradesh, and Delhi:
These Courts had 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 were voluntarily given, it would not be possible for any party to nullify the petition by withdrawing the consent.
View of the High Court of Kerala, Rajasthan, and Punjab & Haryana:
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.
Therefore, the Supreme Court by adopting the view of Kerala, Rajasthan, and Punjab & Haryana observed that:
- . They know that they have to take a further step to snap marital ties.
- 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.
The Court observed that Sub-section (1) of Section 13B requires that the petition for divorce by mutual consent must be presented jointly by both parties. Similarly, Sub-section (2) providing for the motion before the Court for hearing the petition should also be by both the parties. It is necessary that immediately preceding the petition’s presentation, the parties must have been ‘living separately’, connoting that they ought not to be living like husband and wife. The marriage must have broken down, and there must be no scope of reconciliation between the parties. The parties must have mutually agreed that the marriage should be dissolved. The motion made under Sub-section (2) enables the Court to proceed with the case 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 filing of the petition with mutual consent does not authorize the Court to make a decree for divorce. In the interregnum (from 6 months to 18 months), one of the parties may have a second thought and change the mind not to proceed with the petition. The Section does not provide that if there is a change of mind, it should not be by one party alone. There should also be mutual consent when the parties move the Court with a request to pass a decree of divorce. If there is no mutual consent at the time of the inquiry, the Court gets no jurisdiction to make a decree for divorce.
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. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B. Mutual consent should continue until the divorce decree is passed.
Mutual consent should continue until the divorce decree is passed. Therefore, the Court did not grant the decree of divorce by mutual consent in this case.