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2011 (3) Supreme 268
SUPREME COURT OF INDIA
D. K. Jain and H. L. Dattu, JJ.
Hitesh Bhatnagar — Appellant
versus
Deepa Bhatnagar — Respondent
Civil Appeal No. 6288 of 2008
Decided on : 18-4-2011
(1991) 2 SCC 25; (2009) 13 SCC 338 – Relied upon
(1997) 4 SCC 226 – Referred
(b) Hindu Marriage Act, 1955 – Section 13-B – If the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce – Secondly, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. (Para 15)
(c) Hindu Marriage Act, 1955 – Section 13-B – Second motion never made by both the parties – Grant of divorce by mutual consent would be out of question. (Para 16)
(f) Hindu Marriage Act, 1955 – Section 13-B – The eighteen month period specified only to ensure quick disposal of cases of divorce by mutual consent – Not to specify the time period for withdrawal of consent. (Para 16)
(g) Constitution of India – Article 142 r/w section 13-B, Hindu Marriage Act, 1955 – Acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case – Divorce cannot be granted on the ground of irretrievable breakdown of marriage. (Para 19)
(2009) 10 SCC 425; (2010) 4 SCC 393; (1994) 1 SCC 337; (2002) 2 SCC 73; (2007) 4 SCC 511 – Relied upon
(2009) 10 SCC 415 – Distinguished
(h) Constitution of India – Article 142 r/w section 13-B, Hindu Marriage Act, 1955 – Divorce can be granted on the ground of irretrievable breakdown of marriage only when the Court is totally convinced that there is absolutely no chance of the marriage surviving and it is broken beyond repair – Even if the chances are infinitesimal for the marriage to survive, the Court should not use its power under Article 142 to dissolve the marriage as having broken down irretrievably. (Para 25)
(i) Constitution of India – Article 142 r/w section 13-B, Hindu Marriage Act, 1955 – Despite there being bitterness between the parties and them having not even lived as husband and wife for the past about 11 years, the wife still wants to live with her husband as his wife – She never wanted divorce for the sake of their only girl child – No case made out for exercise of powers u/Art. 142 to dissolve the marriage. (Para 26)
Facts of the case:
1. The parties filed a petition for dissolution of the marriage by grant of a decree of divorce by mutual consent.
2. However, before the stage of second motion and passing of the decree of divorce, the respondent withdrew her consent, and in view of this, the petition came to be dismissed by the Ld. Addl. District Judge, though the appellant insisted for passing of the decree.
3. The appellant filed appeal before the High Court which was dismissed.
Finding of the Court:
No case made out for exercise of powers u/Art. 142 to dissolve the marriage on the ground of irretrievable breakdown of marriage.
Result : Appeal dismissed.
Certainly. Based on the provided legal document, here are the key points:
A marriage can be dissolved on the ground of irretrievable breakdown only when the Court is fully convinced that there is no possibility of the marriage surviving and it is beyond repair. Even if the chances of survival are minimal, the Court should refrain from exercising its power to dissolve the marriage under extraordinary jurisdiction unless absolutely justified (!) (!) .
The primary basis for granting a decree of divorce by mutual consent is the genuine and free mutual consent of both parties. Such consent must be demonstrably clear and should not be obtained under force, fraud, or undue influence (!) (!) .
The law stipulates a mandatory waiting period of at least six months and up to eighteen months from the date of filing the petition before the court can pass a decree of divorce by mutual consent. This period is intended for reflection and reconciliation, not for withdrawal of consent (!) (!) .
The withdrawal of consent by either party at any time before the passing of the decree is permissible and can prevent the court from granting the divorce. The mutual consent must be maintained throughout the process, and the absence of a second motion within the prescribed period means the court is not bound to grant divorce (!) (!) .
The court’s jurisdiction to grant divorce by mutual consent is contingent upon the existence of mutual consent at the time of the second motion and the court's satisfaction that the consent was given freely and is still valid (!) .
The Court cannot exercise its extraordinary power under constitutional provisions to dissolve a marriage if the parties do not genuinely desire to end the marriage or if one party wishes to continue the marriage for reasons such as the welfare of their child or other compassionate grounds (!) (!) (!) .
The power under constitutional provisions should be exercised sparingly and only when the statutory provisions are insufficient to deliver justice, and the Court must ensure that such exercise does not contravene or ignore existing laws (!) (!) .
In cases where there is a persistent desire to continue the marriage, despite bitterness or long separation, the Court should consider giving the marriage another chance, especially when the marriage is not beyond repair and the parties are willing to reconcile for the sake of their future and their children (!) (!) .
Overall, the process emphasizes the importance of mutual, voluntary consent, adherence to statutory procedures, and careful judicial scrutiny before dissolving a marriage, ensuring that the decision is just and in accord with legal principles (!) (!) (!) .
Please let me know if you need further analysis or specific legal advice.
JUDGMENT
H.L. Dattu, J. —
1) Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us.
2) The appellant-husband and the respondent-wife got married according to the Hindu Marriage Act, 1955 [hereinafter referred to as ‘the Act’] in 1994, and are blessed with a daughter a year thereafter. Some time in the year 2000, due to differences in their temperaments, they began to live separately from each other and have been living thus ever since. Subsequently, in 2001, the parties filed a petition under Section 13B of the Act before the District Court, Gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. However, before the stage of second motion and passing of the decree of divorce, the respondent withdrew her consent, and in view of this, the petition came to be dismissed by the Ld. Addl. District Judge, Gurgaon, though the appellant insisted for passing of the decree. The appellant, being aggrieved, has filed appeal No. F.A.O. No. 193 of 2003, before the High Court of Punjab and Haryana. The Learned Judge, by his well considered order, dismissed the appeal vide order dt. 08.11.2006. Being aggrieved by the same, the appellant is before us in this appeal.
3) We have heard the learned counsel for the parties and since the parties wanted to ventilate their grievances, we have heard them also.
4) The issues that arise for our consideration and decision are as under:
(a) Whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act.
(b) Whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances.
5) In order to answer the issues that we have framed for our consideration and decision, Section 13B of the Act requires to be noticed :-
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 solemnized 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 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) Admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. However, before the stage of second motion, the respondent withdrew her consent by filing an application dated 22.03.2003. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent, appearing in-person, submits that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She states that she never wanted divorce and is even now willing to
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