First appeal against dismissal of a mutual consent divorce petition under Section 13-B of Hindu Marriage Act, 1955. The Court held that consent can be withdrawn by one party before the decree is passed, requiring continued mutual consent for the decree to be granted.
Appellant's appeal dismissed for lack of merit as consent was withdrawn.
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A.F.R.
Court No. - 4
Case :- FIRST APPEAL No. - 355 of 2017 Appellant :- Smt. Poonam Respondent :- Rajiv Bariyani Counsel for Appellant :- Santosh Kumar Srivastava Counsel for Respondent :- Harindra Prasad
Hon'ble Bala Krishna Narayana,J.
Hon'ble Shamim Ahmed,J.
Heard learned counsel for the appellant and Sri Harindra Prasad, learned counsel for the sole respondent.
This first appeal has been filed by the appellant Smt. Poonam against the judgement and order dated 28.1.2017 passed by Family Court, Gorakhpur, by which Case No. 458 of 2014 (Rajiv Bariyani vs. Smt. Poonam) under Section 13-B of Hindu Marriage Act, 1955 (hereinafter referred to as the "Act"), has been dismissed on the ground that the respondent Rajiv Bariyani has withdrawn his consent.
It is contended by learned counsel for the appellant that since the parties have been living separately for the past seven years and the respondent, after giving his consent to divorce by mutual consent, had withdrawn the same after two and a half years, the Family Judge was not at all legally justified in dismissing the Case No. 458 of 2014 (Rajiv Bariyani vs. Smt. Poonam).
Per contra, Sri Harindra Prasad, 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 Sureshta Devi vs. Om Prakash reported in 1991 2 SCC 25 submitted that consent can be withdrawn by one of the parties any time before the Court passes a decree of divorce by mutual consent.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.
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.
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.
Section 13B in The Hindu Marriage Act, 1955
13B. Divorce by mutual consent
(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.
(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.]
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 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.
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.
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 :-
" 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 themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.
10. 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
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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."
13. 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.
A Bench of three learned Judges of the Hon'ble Apex Court in the case of Smruti Pahariya v. Sanjay Pahariya, reported in 2009 13 SCC 338 while approving the ratio laid down in the case of Smt. Sureshta Devi (supra) , took the following view :-
“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
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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.
41. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi (supra).
42. 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.
43. 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.
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 in a 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 dismissing the Case No. 458 of 2014 (Rajiv Bariyani vs. Smt. Poonam).
This appeal lacks merit and is accordingly dismissed.
Order Date :- 3.1.2020 Shalini
3 issues framed by the court
Whether consent to divorce under Section 13-B can be withdrawn by one party before the decree is passed.
Whether the Family Court legally erred in dismissing the divorce petition when mutual consent was withdrawn.
Whether Section 13-B requires mutual consent up until the time of passing the divorce decree.
Colour shows how this judgement treated each authority
Smt. Sureshta Devi vs. Om PrakashRelied on¶25
1991 2 SCC 25 · Who else cites this
Smruti Pahariya v. Sanjay PahariyaRelied on¶30
2009 13 SCC 338 · Who else cites this
1 provisions across 1 enactments
Smt. Poonam
Rajiv Bariyani
Bala Krishna Narayana
Shamim Ahmed
As recorded by the court registry
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