Citations: 1992 AIR 1904, 1991 SCR(1) 274

Appellant: Smt. Sureshta Devi

Respondents: Om Prakash

Decided On: 7.02. 1991

Equivalent Citations:

1. 1992 AIR 1904

2. 1991 SCR (1) 274

Benches:

SHETTY, KJ (J)

AGRAWAL, SC (J)

Statutes Referred:

Hindu Marriage Act, 1955

Special Marriage Act, 1954

Marriage Laws (Amendment) Act, 1976

In a marriage, a man and woman make a lifelong commitment to one another, promising to love and cherish one another until death do them part. The pair learns the true meaning of love, trust, tolerance, support and harmony through their marriage as a union. It is a community of people where bonds are formed between not just two individuals but also two families. Divorce is the discontinuation of a marriage and there are a number of grounds for divorce and through mutual consent is one such ground.

One of the most sophisticated and decorative methods to dissolve a marriage is divorce by mutual consent[1]. Upon realizing that the wife and the husband cannot live together, they can mutually agree to dissolve the marriage with the help of this provision[2]. As compared to other methods of divorce, mutual consent is much easier for both parties, and much less complicated in litigation. It only requires consent to end the marriage, from both parties, and if convinced, the court can even decrease the time of this process.[3]

Mutual consent to divorce is a requirement for issuing a divorce decision and according to section 13B of the Hindu Marriage Act of 1955, “when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influences”. [4]Mutual consent to divorce is a requirement for issuing a divorce decision. The court must need both parties’ consent in order to issue a divorce decree, and the mutual consent should remain in place until the divorce is finalized. If the Court is handed the power to issue a decree based only on the first petition, the notion of the concepts of mutuality and agreement to divorce are abandoned. In this case, the Supreme Court considers whether a party to a mutual consent divorce petition under section 13B of the Hindu Marriage Act, 1955, has the right to revoke their assent or if, once granted, it is irrevocable.

The respondent’s wife is the appellant in the current case. The ceremony took place on November 21st, 1968. According to reports, the pair only spent a brief month together from 9 December 1984 to 7 January 1985. The pair did not live together or act in a romantic manner throughout the brief month-long period when they were separated due to a court order.

In accordance with clause 13B of the Hindu Marriage Act of 1955, the couple filed a petition for divorce by mutual consent in the district court of Harimpur. On January 9, 1985, the district court entered statements from both parties.

The wife (appellant in this case) filed an application on January 15th, 1985, claiming that the Harimpur district court had taken her statement under duress and intimidation from her husband. The wife asked the court to dismiss the petition and declare that she would not be a party to the divorce by mutual consent. The High Court received an appeal of the district judge’s rulings, and it returned the matter to the district judge for additional review.

The district judge ultimately recruits the divorce petition. The District Judge’s decision was overturned by the High Court on appeal, and a judgment for the dissolution of the marriage by mutual consent was issued. The High Court made the observation that once a spouse consents to a divorce petition, they are unable to unilaterally withdraw that agrees. If the consent was given freely in the first place, the court would still be able to dissolve the marriage by mutual consent.

Therefore, the appeal was filed by the appellant before the Supreme Court.

ISSUES

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?[5]

The three requirements for divorce by mutual consent under Subsection (1) of Section 13-B are:

1. The couple have been living separately for a period of one year.

2. The couple have not been able to live together.

3. The couple have mutually agreed to dissolve the marriage.[6]

Sub-section (2) of Section 13-B states that, “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 opinions in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence.”[7]

The question of whether a party to a mutual consent divorce case under Section 13B of the Hindu Marriage Act, 1955 can withdraw their consent or if consent is irrevocable once given has been debated by several high courts in India.

The Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe said that, “the crucial time for a party to give their consent for divorce by mutual consent under section 13-B is the time when the petition was filed given that such consent has not been obtained by force, fraud or undue influence .”[8]

The High Court of Delhi followed the same line of reasoning in Smt. Chander Kanta v. Hans Kumar and others[9]and the Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta[10], also took the same view.

While Rajasthan High Court in Santosh Kumari v. Virendra Kumar [11]and Kerala High Court in KL Mohanan v. Jeejabaiand [12]the Punjab and Haryana High court in Harcharan Kaur v. Nachhattar singh[13] , have ruled that any party may decide to end a marriage by mutual consent at any moment prior to the court issuing a judgment for the dissolution of the marriage. the pleasure of the court following a review of the admissibility of the consent inevitably has a revocation clause that either spouse may utilize.

In this case, the Indian Supreme Court upheld the judgment of the High Courts of Rajasthan, Kerala, Punjab, and Haryana and held that the concept of mutuality and consent of a partner for divorce would be rendered meaningless if the courts were given the authority to grant a divorce based solely on the couple’s initial court petition.

The Indian Supreme Court was correct to rule that the filing of a petition with mutual consent does not provide the court with the authority to grant a divorce decision. The 6- to 18-month waiting period outlined in Subsection (2) of Section 13-B is meant to allow the parties ample time to think over their decisions and consult with family and friends. One of the parties may change their minds and opt not to move further with the petition during this interim time. The spouse is prohibited from participating in the joint motion under paragraph (2). Nothing in the Section prohibits taking such a step. The Section does not need the other party to change their views if the first party does.

The court should be satisfied with the parties’ good faith and consent, according to the high courts of Rajasthan, Kerala, Punjab and Haryana. If there isn’t mutual consent at the time of the inquiry, the court lacks the jurisdiction to grant a divorce. If the Court has a different opinion, it may, at the request of one party and without the consent of the other, launch an inquiry and grant a divorce judgment. Such a ruling cannot be regarded as one that was reached via mutual consent.

The High Courts in Delhi and Mumbai have moved forward based on the reasoning that -When the petition is filed, not when they later seek for a divorce decree, is the important period for obtaining mutual consent for divorce. This strategy seems unworkable. The parties are aware that their petition does not automatically server the relationship at the moment of the petition by mutual consent. They are aware that they must go one step further to dissolve their marriage. This is made apparent in Subsection (2) of Section 13-B.

This clause’s requirement that mutual consent be present when they ask the court to grant a divorce order is crucial. Second, the Court must be convinced of the parties’ good faith and consent. The court lacks jurisdiction to provide a divorce decision if there is not mutual consent at the time of the inquiry.

The concept of mutuality and consent is completely destroyed if the Court is granted the authority to issue a decree simply based on the first petition.

Under Section 13-B, mutual assent to the divorce is a requirement for granting a divorce decree. Mutual consent should last until the divorce decree is granted.

The Hon’ble Supreme Court in Smt Sureshta Devi v. Om Prakash held that “a party to a mutual consent divorce petition under section 13B of Hindu marriage act, 1955 can withdraw their consent until the decree for dissolution of marriage is passed.”

There is no mention of your residence. The parties may not be living as husband and wife even if they may share a home because of certain conditions. They had been living apart for a year previously to the petition’s filing because of their inability or unwillingness to fulfill their marital obligations. As the Supreme Court has determined in several decisions, the phrase “have been living apart” need not imply a physical separation or distinct and separate living. The fact that couples are not upholding their marital duties and are not cohabiting as husband and wife is what concerns this.

The Bench carefully considered all the important elements and came to the conclusion that the mutual consent expressed at the time the divorce petition was filed was inadequate to provide the Court the authority to deliver a divorce judgment based on mutual consent. The parties must have the same mutual permission when filing a joint petition for divorce by mutual consent after six to eighteen months, at which time any party may withdraw their consent.

[1] 5Anil Malhotra & Ranjit Malhotra, Marriage and Divorce – Complete Constitutional Justice, 2015 INT’l Surv. FAM. L. 121 (2015).

[2] Sampak P. Garg, Law and Religion: The Divorce Systems of India, 6 Tulsa J. COMP. & INT’l L. 1 (1998).

[3] Amit Jain v. Cadets Jain, (2007) 147 PLR 114.

[4] The Hindu marriage act, 1955, §23(1)(bb), No. 25, Acts of Parliament, 1955 (India).

[5] Smt. Sureshta Devi vs Om Prakash 1992 AIR 1904, 1991 SCR (1) 274

[6] The Hindu marriage act, 1955, §13B(2), No. 25, Acts of Parliament, 1955 (India).

[7] Ibid

[8] Jayashree Ramesh Londhe v. Ramesh Bhikaji LondonAIR 1984 Bombay 302

[9] 9 Smt. Chander Kanta v. Hans Kumar and anr., AIR 1989 Delhi 73

[10] Meena Dutta v. Anirudh Dutta, (1984) II DMC 388

[11] Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128

[12] KL Mohanan v. Jeejabai, AIR 1988 Kerala 28

[13] Harcharan Kaur v. Nachhattar singh, AIR (1987-2)92 PLR 224