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SUPREME COURT OF INDIA
K.Jagannatha Shetty : S.C.Agrawal
Sureshta Devi
Versus
Om Prakash
Case No. : 633 of 1991
Date of Decision : 2/7/91
Advocates Appeared: Jain Subhag Mal : Mehta Dhruv : Mehta S.K. : Puri H.K. : Vachher Aman
Hindu Marriage Act, 1955 - Section 13 B (1) - expression “living separately” - connotes not living like 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 proceeding the presentation of the petition. (Para 9)
Hindu Marriage Act, 1955 - Section 13B (1) - expression “they have not been able to live together” - indicates the concept of broken marriage without any possibility of reconciliation. (Para 9)
Hindu Marriage Act, 1955 - Section 13B - divorce by mutual consent - mutual consent to the divorce is a sine qua non for passing a decree for divorce u/s 13 B - since the consent can be withdraw an at any time before the passing of the decree, the mere filing of the petition with mutual consent does not authorise the court to make the decree of divorce - such consent must continue and be subsisting till the divorce decree is passed - it is a positive requirement for the court to pass a decree of divorce. (1972) All ER 667 - Relied Upon; AIR 1988 Ker 28, AIR 1988 P & H 27, AIR 1986 Raj 128 - Approved: AIR 1984 Bom 302, AIR 1989 Delhi 73, (1984) 2 DMC 388 - Overruled.
Based on the provided legal document, the key points are as follows:
The section on divorce by mutual consent under the Hindu Marriage Act, 1955, is in pari materia with similar provisions under the Special Marriage Act, 1954. The section requires that the petition for divorce be filed jointly by both parties, and that the parties have been living separately for a period of at least one year immediately preceding the filing (!) (!) .
The concept of "living separately" connotes that the parties are not living like husband and wife, which is determined by their mental attitude and desire to perform marital obligations, rather than solely by their physical living arrangements. The period of separation must be immediately prior to the filing of the petition (!) (!) .
The mutual consent for divorce must be genuine and free from force, fraud, or undue influence. The court's inquiry during the process is to ensure that the consent was obtained bona fide and that the parties genuinely wish to dissolve the marriage (!) (!) .
The law emphasizes that mutual consent to divorce is a sine qua non and must continue to be valid and subsisting at the time the court passes the decree. The court's role includes verifying that the consent remains intact during the inquiry stage, especially when the parties move for the passing of the divorce decree (!) (!) .
There is a divergence of judicial opinion regarding whether a party can unilaterally withdraw consent at any stage before the decree is passed. Some courts hold that once consent is given freely, it cannot be revoked, while others recognize that a party may withdraw consent before the court grants the divorce decree, provided the withdrawal occurs before the final order (!) (!) .
The interpretation that mutual consent must be maintained throughout the process, including during the inquiry and the passing of the decree, is supported by the majority view in the legal document. The court emphasizes that mutual consent should be continuous and valid at the time of the decree (!) (!) .
The court ultimately allows the appeal and sets aside the decree for dissolution of marriage, reaffirming that mutual consent is essential and must be maintained throughout the legal process. The decision underscores that the parties' consent should be genuine, ongoing, and not withdrawn unilaterally at any stage before the decree is issued (!) .
These points collectively highlight the importance of continuous, genuine mutual consent in divorce proceedings under the specified statutes and clarify the legal stance on the withdrawal of consent during such proceedings.
Judgment
K. JAGANNATHA SHETTY, J.
(1) SPECIAL leave granted.
(2) THIS appeal from a decision of the Himachal Pradesh High court concerns the validity of a decree of dissolution of marriage by mutual consent, and is said, probably rightly, to raise an important issue. The issue is whether a party to a petition for divorce by mutual consent under S. 13-B of the Hindu Marriage Act, 1955 (Act) can unilaterally withdraw the consent or whether the consent once given is irrevocable.
(3) THE appellant is the wife of the respondent. They were married on 21/11/1968. They lived together for about six to seven months. Thereafter, it is said that the wife did not stay with the husband except from December 9, 198 4/01/1985. That was pursuant to an order of the court, but it seems that they did not live like husband and wife during that period also. On 8/01/1985, both of them came to Hamirpur. The wife was accompanied by her counsel, Shri Madan Rattan. After about an hours discussion, they moved a petition under S. 13-B for divorce by mutual consent in the District court at Hamirpur. On 9/01/1985 the court recorded statements of the parties and left the matter there.
(4) ON 15/01/1985, the .wife filed an application in the court, inter alia, staling that her statement dated 9/01/1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce. Nor they were permitted to accompany her to the court. She said that she would not be party to the petition and prayed for its. dismissal. The District Judge made certain orders which were taken up in appeal before the High court and the High court remanded the matter to the District Judge for fresh disposal. Ultimately, the District Judge dismissed the petition for divorce. But upon appeal the High court has reversed the order of the District Judge and granted a decree for dissolution of the 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 and such withdrawal however, would not take away the jurisdiction of the court to dissolve the marriage by mutual consent, if the consent was otherwise free. The High court also recorded a finding that the wife gave her consent to the petition without any force, fraud or undue influence and therefore she was bound by that consent.
(5) S. 13-B was not there in the original Act. It was introduced by the Amending Act 68 of 1976, S. 13-B provides:
"13-B. 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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 Ss. (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 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."
(6) IT is also necessary to read S. 23(1(bb):
"23. Decree in proceedings.(1 In any proceeding under this Act, whether defended or not, if the court is satisfied that
(BB) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by forc
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