1. Divorce proceedings — Original petition for divorce on grounds of desertion, cruelty, and nullity under Section 11, Hindu Marriage Act — Subsequent agreement for mutual consent. (Para 3 )
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1999 Supreme(SC) 1485
SUPREME COURT OF INDIA
S.B.Majmudar : V.N.Khare
Kiran
Versus
Sharad Dutt
Case No. : 7149 of 1999
Date of Decision : 12/10/99
The Supreme Court, exercising its power under Article 142 of the Constitution of India, can grant a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, by accepting consent terms to resolve long-pending matrimonial disputes.
Headnote:(A) Hindu Marriage Act, 1955 - Sections 11 and 13-B - Constitution of India - Article 142 - Divorce by mutual consent - Parties agreeing to divorce during the pendency of proceedings - Court may exercise power under Article 142 to accept consent terms and grant a decree for dissolution of marriage by mutual consent to avoid further delay in long-pending litigation. (Para 3)
Facts of the case:
A petition for divorce on grounds of desertion and cruelty, and for nullity of marriage on the ground of lack of custom regarding marriage between first cousins, had been pending for 11 years. During the pendency of the appeal, the parties agreed to a divorce by mutual consent and filed joint consent terms, including agreements on permanent alimony and monthly maintenance. The parties had been living separately for several years and had no children.
Findings of Court:
The terms suggested for mutual consent were found to be fair. Given that the parties were unable to reconcile and the proceedings had been pending for over a decade, there was no necessity to further delay the passing of the decree.
Issues: Whether the court could permit the amendment of a contested divorce petition to one for mutual consent and grant a decree under Article 142 of the Constitution of India.
Ratio Decidendi: In exercise of the power under Article 142 of the Constitution of India, the court can accept consent terms filed by parties and direct a decree for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, particularly when the litigation has been prolonged and the parties have reached a fair settlement.
Result: Appeal disposed of; decree for divorce by mutual consent granted.
Legal Category Hierarchy
Table of Contents
2. Original dispute concerned divorce on grounds of desertion and cruelty, and nullity of marriage due to lack of custom regarding marriage between first cousins. (Para 3 )
3. Parties had lived separately for years without reconciliation, and the proposed consent terms for divorce by mutual consent were found to be fair. (Para 3 )
4. The Supreme Court may exercise powers under Article 142 of the Constitution to grant a decree of divorce by mutual consent under the Hindu Marriage Act. (Para 3 )
5. High Court and trial court judgments set aside; decree for divorce by mutual consent under Section 13-B, Hindu Marriage Act granted. (Para 3 )
6. Can the Supreme Court grant a divorce by mutual consent using its extraordinary powers?
Yes, the Supreme Court can exercise its power under Article 142 of the Constitution of India to accept consent terms and direct a decree for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. (Para 3 )
7. What is the effect of a mutual consent agreement on existing prayers for divorce on other grounds?
When parties jointly move for a decree of divorce by mutual consent, previous prayers for divorce on grounds such as desertion, cruelty, or nullity of marriage no longer survive. (Para 3 )
S.B.MAJMUDAR, J.
(1) LEAVE granted.
(2) WE have heard learned counsel for the parties finally in this appeal.
(3) DURING the pendency of the proceedings at Special Leave Petition stage there was a development by which the parties agreed to get divorce by mutual consent. The matter was therefore, adjourned. We are happy to note that the consent terms came to be filed on these lines duly signed by the appellant-wife as well as respondent-husband and also by their Advocates-on-record. We have gone through I.A.No.3 of 1999 which has been jointly moved by both the parties for getting a decree of divorce by mutual consent. In our view, the terms suggested are quite fair. We find that both the parties are living separately since years and they are not in position to see eye to eye and live together. They are not blessed with any child. Therefore, the prayer in original Hindu Marriage Petition No.584 of 1988 which was for divorce on the ground of alleged desertion and cruelty by wife and also under Section 11 of the Hindu Marriage Act wherein the respondent-husband sought a decree for nullity on the ground that there was no custom of marriage between the first cousins would no longer survive. The prayer in I.A.No.3 of 1999 for permitting the parties to amend the Hindu Marriage Petition is allowed in terms of para 3 of the I.A. We grant amendment to the divorce petition by treating it to be one under section 13-B of the Hindu Marriage Act, 1955. The proceedings between the husband and wife for dissolution of marriage are pending since 11 years. On the fact of the case, there is no necessity to further delay the passing of the decree for divorce by mutual consent. We therefore, in exercise of our power under Article 142 of the Constitution of India accept the consent terms filed by the parties and direct that a decree for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 be passed in this case. The agreement regarding payment of permanent alimony and monthly maintenance as laid down in paragraph 2 (a) to (d) shall form part of the decree for dissolution of marriage by mutual consent. The judgments and decrees of the High Court and trial court are set aside. The Hindu Marriage Petition will stand allowed in terms of prayer for divorce by mutual consent. The appeal is disposed of accordingly. No costs.
