Dismissed

Prabhat Singh v. Smt. Shweta Yadav

Allahabad HC6 Jan 2020FAPL/199/2017

Case brief

AI extract

What is this about?

The High Court dismissed the first appeal filed by a husband against an order directing him to return custody of his minor daughter and referring the mutual consent divorce petition to mediation. The wife had withdrawn her consent before the decree was passed. Applying Sureshta Devi, the court held that consent can be withdrawn anytime before the decree, and without current mutual consent, a divor

What did the court decide?

Appeal dismissed; original order of the Principal Judge, Family Court, Ghaziabad dated 15.03.2017 upheld; petition remanded to mediation center.

Prabhat Singh Vs Smt. Shweta Yadav — Matrimonial and Divorce | Allahabad HC (2020)

A.F.R.

Court No. - 4

Case :- FIRST APPEAL No. - 199 of 2017

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Appellant :- Prabhat Singh Respondent :- Smt. Shweta Yadav Counsel for Appellant :- Sandeep Saxena,Ajay Kumar Rai,Dileep Chandra Mishra Counsel for Respondent :- Anil Kumar,Arvind Srivastava,Kandarp Srivastava,Kaustubh Srivastava

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Hon'ble Bala Krishna Narayana,J. Hon'ble Shamim Ahmed,J.

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(As per Hon'ble Shamim Ahmed, J.)

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Heard learned counsel for the appellant and learned counsel for the sole respondent.

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This first appeal has been filed by the appellant Prabhat Singh against the judgement and order dated 15.03.2017 passed by Principal Judge, Family Court, Ghaziabad in Petition No.392 of 2017 (Smt. Shweta Yadav Vs. Prabhat Singh), under Section 13-B of Hindu Marriage Act, 1955 (hereinafter referred to as the "Act"), by which the court below has directed the appellant to return the custody of minor child and referred the petition under Section 13-B of the Act to the mediation center on the ground that the respondent-Smt. Shweta Yadav has withdrawn her consent for divorce by mutual consent.

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It is argued by the learned counsel for the appellant that the marriage of the appellant was solemnized with the respondent-Smt. Shweta Yadav on 05.12.2011 and out of the aforesaid wedlock a daughter was born on 21.07.2014 and she has separated from the appellant on 21.06.2015 and living separately.

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Learned counsel for the appellant further argued that the appellant found it impossible to live without his daughter, hence he pleaded for return of his wife (respondent) but she filed a divorce petition bearing

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No.1122 of 2015, under Section 13 of the Act in Family Court, Ghaziabad, the respondent never allowed the appellant to meet his daughter which made his life miserable and pathetic.

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It was further argued by the learned counsel for the appellant that the respondent-Smt. Shweta Yadav agreed to give the custody of the minor child to the appellant on the ground that the appellant shall agree for filing a joint petition under Section 13-B of the Act and return the jewelry as demanded by respondent-Smt. Shweta Yadav, the appellant fell in the trap of the respondent-Smt. Shweta Yadav out of the love and affection of his daughter and agreed to file a joint divorce petition under Section 13-B of the Act in the Family Court, Ghaziabad. The divorce petition was filed on 02.03.2017 and numbered as 392 of 2017. The statement of the parties were also recorded at the time of first motion of the divorce petition and the custody of the minor daughter was handed over to the appellant on the same day i.e. 02.03.2017.

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Learned counsel for the appellant submits that the respondentSmt. Shweta Yadav had moved an application dated 06.03.2017 in the divorce petition filed under Section 13-B of the Act along with an affidavit alleging therein that she cannot meet her minor daughter, hence she wants the custody of the minor daughter and she also mentioned that she is withdrawing her consent.

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Learned counsel for the appellant further submits that the action of the respondent-Smt. Shweta Yadav in withdrawing her consent without any valid reason once she has given the consent for divorce by mutual consent was totally against the law, but the Principal Judge, Family Court, Ghaziabad without passing the decree of divorce vide order dated 15.03.2017 directed the appellant to return the custody of minor daughter within 24 hours and refer the Case no.392 of 2017, under Section 13-B of the Act to the mediation center, therefore, the order dated 15.03.2017 appears to be wrong and against the provisions of Section 13-B of the Act, as such is liable to be quashed.

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Per contra, learned counsel for the sole respondent by placing reliance upon a judgement rendered by the Apex Court in Smt. Sureshta Devi vs. Om Prakash reported in 1991 2 SCC 25 submitted that consent can be withdrawn by one of the parties any time before the Court passes a decree of divorce by mutual consent.

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We have heard learned counsel for the parties.

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Since the facts of this case are not in dispute, with the consent of the learned counsel for the parties, we are deciding this appeal finally at the admission stage itself as per the High Court Rules.

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In order to appreciate the submissions made by learned counsel for the parties, it would be useful to extract Section 13-B of the Act.

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Section 13B in The Hindu Marriage Act, 1955 13-B. Divorce by mutual consent

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(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.

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(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.]

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Even the most superficial reading of sub-section (1) Section 13-B of the Act indicates that subject to the provisions of the Act, a petition for dissolution of marriage by a decree of divorce may be presented to

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the district court 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 that they have mutually agreed that the marriage should be dissolved.

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Sub-section (2) of Section 13-B of the Act further stipulates that 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 18 months after the said date and 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.

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There is nothing in Section 13-B of the Act which may indicate that the consent once given by either of the parties to a petition for divorce by mutual consent, cannot be withdrawn before a decree of divorce by mutual consent is passed.

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Section 13-B of the Act was examined by the Apex Court in the case of Smt. Sureshta Devi (supra). Paragraph nos. 9, 10 and 13 of the aforesaid judgement which are relevant for our purpose are being reproduced hereinbelow:-

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"9. 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 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 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

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themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.

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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."

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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.

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A Bench of three learned Judges of the Hon'ble Apex Court in the case of Smruti Pahariya v. Sanjay Pahariya,

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reported in 2009 13 SCC 338 while approving the ratio laid down in the case of Smt. Sureshta Devi (supra), took the following view :-

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"40. In the Constitution Bench, decision of this Court in Rupa Ashok Hurra (supra), this Court did not express any view contrary to the views of this Court in Sureshta Devi (supra). We endorse the views taken by this Court in Sureshta Devi (supra) as we find that on a proper construction of the provision in Section 13-B (1) and 13-B (2), there is no scope of doubting the views taken in Shreshta Devi (supra). In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra (supra) has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.

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None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi (supra).

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We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13-B of the said Act can be passed by the Court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the Court grants the decree, the Court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above.

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In our view it is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.

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We have gone through the order passed by the Principal Judge, Family Court, Ghaziabad and the case law referred above and after giving due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was

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introduced. However, Section 13B(2)contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

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The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period is a safeguard against a hasty decision if there was otherwise possibility of differences being reconciled. The object is not to perpetuate a purposeless marriage or to prolong the agony of the parties when there is no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

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In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision.

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The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subjectmatter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully

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attending to the whole scope of the statute to be considered.’

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Thus, in view of the ratio laid down in the case of Smt. Sureshta Devi (supra), we do not find that the Court below committed any illegality or legal infirmity in holding that consent given for divorce by mutual consent can be withdrawn by one of the parties before a Court grants a decree of divorce by mutual consent and when the consent by one of the parties is withdrawn, the Court cannot pass a decree of divorce by mutual consent. Since in this case the respondent has withdrawn his consent before the passing of a decree of divorce by mutual consent, we do not find that the Court below committed any error in passing the order dated 15.03.2017 in Case No.392 of 2017 (Smt. Shweta Yadav Vs. Prabhat Singh).

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This appeal lacks merit and is accordingly dismissed. Order Date :- 6.1.2020 K.S./P.S.Parihar

Prabhat Singh v. Smt. Shweta Yadav

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Prabhat Singh v. Smt. Shweta Yadav

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