The High Court dismissed an appeal filed against the dismissal of a petition for divorce by mutual consent. The court held that the refusal was correct because the respondent withdrew consent before the decree was passed, which is a mandatory requirement under Section 13-B.
The appeal filed by the appellant was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BiLASPUR
OF 2011 FIRST APPEAL (M) No. n
APPELLANT Smt. Shweta, Aged about 31 years, NON-APPLICANT ' W/o Shri Shashank Sharma, R/o New ,^w Shanti Nagar, Tahsil and District Raipur, Chhattisgarh ^.'VE^SUS t<' '^a^P^NDENf SSSS^ WAPPLICANT Shashank Sharma, Aged about 38 year S/o Shri C.B. Sharma, R/o Janaki Gopai it Om Zone Nagar, Mungeli Road, Subham Vihar, Tahsil and District Bilaspur, Chhattisgarh.
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APPEAL UNDER SECTiON 28 OF HINDU MARRIAGE ACT, 1955 READ WITH SECTION 19 OE THE FAIVI1LYCOURTSACT, 1JI84
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HIGH COURT OP CHHAT338GARH AT BjLASPUR
PIRST APPBAL (Ml N0. 141 OP 2011
APPELLANT/ Smt. Shweta
NOH-APPLICANT
Versus
RBSPONDEWT/ Shashaak Sharma APPLICANT
APPEAL UNDBR 8BCTION 28 OP HINDV MARmAGB ACT. 1955 READ WITH SBCTION 19 OF THE PAMBLY COURTS A<?T. 1984
Dtrisiou Bench: Hon'ble Dr. LM. Quddusi fis Hoa'ble Mr. G. Mialiaiuddin. JJ.
Preseat: Mr. Dhiraj Kumar WanJdiede, coiinsel fbr tihie appeUaat Mr. Anil Smgh Rajput, comisel for respondent.
JUDGMENT (Orall
(Paussed on IIth Day ofJune, 2012)
Per Dr. I.M. Quddusi, J.
This appeal has been filed by the appeUaat under Section 28 of fhe Hindu Mardage Act, 1955 read with Section 19 of fhe Paaiily Courts Act, 1984 agamst fhe judgment and decree dated 05-09-2011 passed by Principal Judge, Family Court, Raipur (C.G.)iaCivilSuitNo.40-A/2011dismissiagthe petitionfor dissolution of iiiarriage by xautaal consent iinder Section 13-B of the Htadu Marriage Act, 1955.
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"14. Sub-section (2) requires fbie Court to hear the parties which meaas both fhe parties. If one of the pardes at fh.at st^e says fhat "I have withdrawn iny cousenf', or rtl aai not a wiUing party to the divorce", fhe Court cannot pass a decree of divorce by inutual consent, If fhe Court is held to have fhe power to make a decree solely based on the iaitial petition, it negates fhe whole idea of mutualily aad consent for divorce. Mutual consent to fhe divorce is a siae qua non for passiiig a decree for divorce under Section 13-B. Mutiial consent should coutmue till the divorce decree is passed. It is a positive requirenient for the Court to pass a decree of divorce. 'The conseut dust continue to decree nisi aad inust be vaMd subsisting consent when fhe case is heard'\3?
6, There is catena of decisions of Honl^le Apex Court but ffae last decision fhat is m fhe case of Hitesh Bhatnagar Vs. Deepa Bhatnagar, 2011 (5) SCC 23^, the Hon^le Apex Court in paragraph 14 has set a principle which is quoted as under:-
rtl4. The language employed m Section 13-B(2) ofthe Act is clear. The court is bound to pass a decree of divorce declariiig fhe m.arriage of fbe pardes before it to be clissolved with effect froin the date of tiie decrce, tf fh.e foUowin.g conditions are inet:
(a) A second niotion of bofh tlie parties is niade uot before 6 monfhs from. the date of filnig of the petitiou as required uader sub-section (1) and not later fhaii 18 iiioiith.s:.
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(b) After beartog fixe parttes aiid xxiakmg sxicli inqiiiiy as it ffainks fit, fhe court is satisfied fhat the aw^nxieixfs in fhe petition are true; aDd
(c) The petitloxiis not withdrawn by eifher party at any tiazie befox^ passiag fhe decree,
In other woxds^ if the second motion is not made wititin the period of 18 monfhs, fhen fhe court is not bouDd to pass a decree ofdworce by mutual coxiseiit, Besides, JBnom the language of fhe section, as well as fhe setfled law, it is clear fhat one offhe parties may withdraw fbieir eonsent at a^y ttme before fh.e passiag of fhe decree. The most importaat requirement for a graat of a divorce by mutual consent is free consent of bofh the parties, In other words, unless there is a coiaplete agreement between husbaad and wife for the dissolution of tfae mardage aad unless fhe court is conipletely satisfied, it cannot graat a decree for divorce by mutiial consent Otherwise, in our view, the expression"divorce by mutiial consenf would be otiose, "
8, In the reszilt, the appeal fails, deserves to be and is disxuiissed accordiagly.
9, There shaU be no order as to costs.
Sd/Sd/G. Minhajuddin Judge Dr. I.M. Quddusi Judge
2 issues framed by the court
Whether the Family Court correctly dismissed a petition for divorce by mutual consent when the respondent withdrew his consent before the decree was passed.
Whether mutual consent must continue until the divorce decree is passed under Section 13-B of the Hindu Marriage Act, 1955.
Colour shows how this judgement treated each authority
Sureshta Devi Vs. Om ParkashExplained¶27
AIR 1992 SC 190 · Who else cites this
Hitesh Bhatnagar Vs. Deepa BhatnagarExplained¶29
2011 (5) SCC 233 · Who else cites this
3 provisions across 2 enactments
Smt. Shweta
Shashank Sharma
Dr. I.M. Quddusi
G. Minhajuddin
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
