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Supreme Court Of India
K.G.BALAKRISHNAN, CJI., P.SATHASIVAM, J.
SMRUTI PAHARIYA
Versus
SANJAY PAHARIYA
C.Appl. NO. 3465 of 2009
Decided On : 05/11/2009
(b) Family Courts Act, 1984 – Section 9 – Family court pre-poning proceeding ex-parte and granting an ex-parte decree of divorce by responding to the illegal and unjust demand of the wife – Statutory obligation u/s 13b(2) of Hindu Marriage Act 1955 not discharged by Family court – Court not showing a human and a radically different approach which it is expected to have. (Para 20)
(c) Hindu Marriage Act, 1955 – Section 13b – Continuing consent – Section 13b recognizing possibility of withdrawing the petition filed on consent, during pendency – Bombay, Delhi and Madhya Pradesh High Courts expressing contrary view – Overruled by (1991) 2 SCC 25 – U/s 13b there should be mutual consent on both occasions – When the parties move the Court with a request to pass a decree of divorce and also at the time when the Court is called upon to make an enquiry and then pass the final decree, if the petition is not withdrawn during the period – An ex parte decree cannot be regarded as a decree by mutual consent. (Para 35, 38, 39, 40, 49, 50)
(1991) 2 SCC 25; (2002) 4 SCC 388 – Relied upon
1921, New Zealand Law reports, 876; 1943, 2 All ER 76; (1997) 4 SCC 226; 1971 K. L. T. 663; AIR 1988 Ker 28: (1986) 2 HLR 467: 1986 KLT 990; AIR 1988 P and H 27: (1987) 2 HLR 184: (1987) 92 Punj LR 321; AIR 1986 Raj 128: (1986) 1 HLR 620: 1986 Raj LR 441 – Referred
ILR (1971) 1 Delhi 6; AIR 1982 Bom 302: 86 Bom LR 184; AIR 1989 Del 73; (1984) 2 DMC 388 (MP) – Overruled
Facts of the case:
Parties were married on 5. 3. 1993 at Mumbai following the Hindu Vedic rites. Marriage was also registered. Two sons were born to them.
A few years after that, serious differences and incompatibility surfaced between them and all attempts of settlement failed. The parties stopped living together from January 2005 and decided to file a petition seeking divorce by mutual consent. A joint petition to that effect was filed before the Family Court at Bandra, Mumbai and the same was registered on 19. 5. 2007.
In the instant case, the mandatory period of six months expired on or about 19. 11. 2007. In between, two dates were given, namely, 14. 6. 2007 and 23. 8. 2007 when the parties were given a chance for counselling but on both the days parties were absent and no counselling took place.
On 19. 11. 2007, after the mandatory period of six months, when the matter came up before the Family Court, the husband was absent and the family Court asked the advocate to inform the husband of the next date of hearing of the matter, which was fixed on 1. 12. 2007.
On 19. 11. 2007 itself, an application was made by the wife to summon the husband directing him to be present in the Family court on the next date. Accordingly, summons were sent by the Court on 23. 11. 2007 by courier and the courier returned with the remark "not accepting". The petition was made returnable on 4. 12. 2007.
On 4. 12. 2007 the husband was absent. The Family Court adjourned the matter to 10. 12. 2007.
On 5. 12. 2007, the wife, filed a petition before the Family Court with a prayer that the hearing of the matter may be pre-poned and be taken up on the very same day i. e. 5. 12. 2007. On the aforesaid prayer of the wife, though the matter was not on the board, it was taken on the board by the family Court on 5. 12. 2007 and the decree of divorce was passed ex-parte on that date itself.
High Court set aside the decree.
Finding of the Court:
U/s 13b there should be mutual consent on both occasions: when the parties move the Court with a request to pass a decree of divorce, and also at the time when the Court is called upon to make an enquiry and then pass the final decree, if the petition is not withdrawn during the period.
Result:
Appeal disposed of.
Key Points: - The Court held that there must be mutual consent on both occasions: when filing the petition and at the time of enquiry/final decree under Section 13b(2) (motion of both the parties) (!) (!) (!) - An ex parte decree cannot be regarded as a decree by mutual consent and proceeding must be fair and not conducted for the convenience of one party; improper pre-poning and ex-parte decree are abuses of judicial process (!) (!) - The Family Court’s substituted service without proper satisfaction that the husband was evading service was improper; service must be normal unless there is satisfaction of evasion (!) (!) - The petition for mutual divorce cannot be deemed to have continuing consent solely based on absence on certain dates; consent must be demonstrated by tangible materials and mutuality must exist at the time of decree (!) (!) - The Supreme Court overruled conflicting Bombay/Delhi/Madhya Pradesh High Court views and reaffirmed Sureshta Devi on requirement of continued mutual consent for decree under Section 13b (!) (!) (!) - The Court directed further steps to ascertain consent on a date, and if both parties consent, decree under Section 13b may be passed; if not, case to be disposed according to observations (!) (!) (!) - The purpose of Family Courts Act emphasizes human approach and settlement prior to trial; inappropriate ex parte actions undermine statutory obligations (!) (!) (!)
GANGULY, J.
( 1 ) LEAVE granted.
( 2 ) THE wife, who is the appellant before this court, filed this appeal seeking to impugn the judgment and order dated 5. 6. 2008 passed by the High Court of judicature at bombay, which in a detailed judgment, was pleased to set aside the judgment and decree dated 5. 12. 2007 passed by the family Court, Mumbai, in which the Family court, dissolved the marriage between the appellant and the respondent by a decree of divorce on mutual consent under Section 13b of the Hindu Marriage Act, 1955 (hereinafter "the said Act" ).
( 3 ) ADMITTEDLY, the parties are Hindu and governed by the provisions of the said Act and they were married on 5. 3. 1993 at mumbai following the Hindu Vedic rites. Marriage was also registered. After marriage, the parties resided together in flat No. 601, 2nd Floor, Dinath Court, Sir pochkhanwala Road, Worli, Mumbai. Two sons were born to them, one on 1. 2. 1995 and the other one on 3. 4. 1997. A few years after that, serious differences and incompatibility surfaced between them and all attempts of settlement failed. The parties stopped living together from january 2005 and decided to file a petition seeking divorce by mutual consent under Section 13b of the said Act. A joint petition to that effect was filed before the Family Court at Bandra, Mumbai and the same was registered on 19. 5. 2007. It was averred therein that incompatibility with each other made it difficult for them to co-exist and they stopped cohabiting as husband and wife from January 2005 (para 6 ). In paragraph 13, it was stated that there was no collusion between the parties in filing the petition for divorce by mutual consent and in paragraph 17 it was pointed out that there is no force or coercion between the parties in filing the petition. Along with the said petition, certain consent terms were also filed but with those terms we are not concerned in this proceeding.
( 4 ) UNDER the provisions of Section 13b (2) of the said Act, a minimum period of six month has to elapse before such petition can be taken up for hearing. In the instant case, the said period expired on or about 19. 11. 2007. In between, two dates were given, namely, 14. 6. 2007 and 23. 8. 2007 when the parties were given a chance for counselling but on both the days parties were absent and no counselling took place.
( 5 ) ON 19. 11. 2007, after the mandatory period of six months, the matter came up before the Family Court. It appears from the affidavit filed by the wife in this proceeding before the Bombay High Court that on 3. 11. 2007, advocate of the parties informed the husband that the matter will be listed on 19. 11. 2007 and a draft affidavit of deposition was sent to him through E-mail. It is not in dispute that both the parties had the same advocate. It also appears from the affidavit of the wife that on 18. 11. 2007 the advocate received a text SMS in his mobile from the respondent-husband that he is unable to attend the court on 19. 11. 2007. Therefore, on 19. 11. 2007, when the matter appeared for the first time before the court, the husband was absent and the family Court asked the advocate to inform the husband of the next date of hearing of the matter, which was fixed on 1. 12. 2007.
( 6 ) ON 19. 11. 2007 itself, an application was made by the wife to summon the husband directing him to be present in the Family court on the next date. Accordingly, summons were sent by the Court on 23. 11. 2007 by courier and the courier returned with the remark "not accepting". In this connection, the order which was passed by the Family Court, on 1. 12. 2007, on perusal of the service report is of some importance. The following order was passed on the service return:
"perused the first summons and subsequent orders thereto. I have seen service affidavit also, states that servant was present. Hence I am not able to accept it as a proper one. The courier endorsement is also vague. Considering the contents in affidavit, I allow petitioner No.
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