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2009 Supreme(MP) 928
(SUPREME COURT)
Altamas Kabir and Cyriac Joseph, JJ.
Anil Kumar Jain v. Maya Jain
Civil Appeal No. 5592 of 2009: against the judgment of M.P. High
Court, Bench Jabalpur, passed in First Appeal No.123 of 2005;
Decided on 1.9.2009.
Rohit Arya with Nitin Gaur and Shankar Divate for appellant;
Ms. K. Sarada Devi for respondent.
Headnote:Hindu Marriage Act, 1955 -- S.13B -- Constitution of/India uArt.142 u joint divorce petition submitted by both parties for mutual divorce -later on wife withdrew her consent that she would not Li"Ve with her husband -- parties Li"Ving separately for seven years -"- wife enjoying property given by her husband under agreement -- Supreme Court following its earlier order and exercising powers under Art. 142 passed the consent decree under S.13B of the Act.
In the instant case, the respondent wife has made it very clear that she will not Li"Ve with the petitioner, but, on the other hand, she is also not agreeable to a mutual divorce. In ordinary circumstances, the petitioners remedy would lie in filing a separate petition before the Family Court under section 13 of the Hindu Marriage Act, 1955, on the grounds available, but in the present case there are certain admitted facts which attract the provisions of section 13B there of.
One of the grounds available under section 13B is that the couple have been Li"Ving separately for one year or more and that they have not been able to Li"Ve together, which is, in fact, the case as far as the parties to these proceedings are concerned. In this case, the parties are Li"Ving separately for more than seven years.
As part of the agreement between the parties the appellant had transferred valuable property rights in favour of the respondent and it was after registration of such transfer of property that she withdrew her consent for divorce. She still continues to enjoy the property and insists on Li"Ving separately from the husband.
While, therefore, following the decision in Sureshta Devi case, we are of the view that this is a fit case where we may exercise the powers vested in us under Article 142 of the Constitution. The stand of the respondent wife that she wants to Li"Ve separately from l1er husband but is not agreeable to a mutual divorce is not acceptable, since Li"Ving separately is one of the grounds for grant of a mutual divorce and admittedly the parties are Li"Ving separately for more than seven years.
The appeal is, therefore, allowed. The impugned judgment and order of the High Court is set aside and the petition for grant of mutual divorce under section 13B of the Hindu Marriage Act, 1955, is accepted. (1991)2 SCC 25 followed. (1997)4 SCC 226, (1993)2 SCC 6, (1998)8 SCC 369, (1997)11 SCC 490, (2000)10 SCC 243, (2002)10 SCC 194, (2004)1 SCC 123, (2005)13 SCC 410 and (2007)2 SCC 220 discussed. [Paras 32 to 36
fganw fookg vf/kfu;e] 1955 && /kkjk 13[k & Hkkjr dk lafo/kku && vuq- 142 && nksuksa i{kdkjksa }kjk ikjLifjd fookg&foPNsn ds fy, la;qDr fookg&foPNsn vthZ izLrqr && ckn esa iRuh us] vihy lgefr okil yh fd og ifr ds lkFk ugha jgsxh & i{kdkjksa dk 4 o"kZ ls i`FkDRk% jguk & iRuh }kjk djkj ds v/khu ifr }kjk nh xbZ laifRr dk miHkksx fd;k tkuk mPpre U;k;ky; us vius iwoZ vkns‘k dk vqulj.k djrs gq, rFkk vqu- 142 ds v/khu ‘kfDr;ksa dk iz;ksx djrs gq, vf/kfu;e dh /kkjk 13[k ds v/khu lgefr fMdzh ikfjr dhA
izLrqr ekeys esa] izR;FkhZ iRuh us ;g iw.kZr;k Li"V fd;k gS fd og ;kph ds lkFk ugha jgsxh] ijarq] nwljh vksj] og ikjLifjd fookg&foPNsn ds fy, Hkh lger ugha gSA lk/kkj.k ifjfLFkfr;ksa eas] ;kph dks fganw fookg vf/kfu;e] 1955 dh /kkjk 131 ds v/khu dqVqac U;k;ky; ds le{k miyC/k vk/kkjksa ij i`Fkd~ vthZ izLrqr djus dk mipkj izkIr gksrk] ijarq izLrqqr ekeys esa dfri; Lohd`r rF; gS tks bldh /kkjk 13[k ds mica/kksa dks vkdf"kZr djrs gSA
/kkjk 13[k ds v/khu miyC/k vk/kkjksa esa ls ,d gS fd naifRr ,d o"kZ ;k vf/kd ls i`FkDr% jg jgs gksa rFkk ;g fd o lkFk&lkFk jgus eas leFkZ ugha gks] tks fd] okLro esa] tgk¡ rd bu dk;Zokfg;ksa ds i{kdkjksa dk ljksdkj gS] ;gh ekeyk gSA bl ekeys esa] i{kdkj lkr o"kZ ls vf/kd ls i`FkDr% jg jgs gSaA
i{kdkjksa dsa e/; djkj ds Hkkx ds vuqlkj vihykFkhZ us ewY;koku~ laifRr ds vf/kdkjksa dks izR;FkhZ ds i{k eas varfjr dj fn;k Fkk rFkk laifRr esa ,sls varj.k ds jftLVªhdj.k ds i‘pkr~ gh mlus fookg&foPNsn ds fy, viuh lgefr okil yhA og vHkh Hkh laifRr dk mi;ksx tkjh j[ks gq, gS rFkk ifr ls i`FkDr% jgus ds fy, vkxzg djrh gSA
lqjsVk nsoh ekeys ds fu.kZ; dk vuqlkj.k djrs gq, gekjh jk; gS fd ;g vi;qDr ekeyk gS tgk¡ ge lafo/kku ds vuqPNsn 142 ds v/khu ge esa fufgr ‘kfDr;ksa dk iz;ksx dj ldrsa gSA izR;FkhZ iRuh dk ;g vk/kkj fd og vius ifr ls i`FkDr% jguk pkgrh gS ijarq ikjLifjd fookg&foPNsn ds fy, lgefr ugha gS] xzkg~; ugha gS] D;ksafd ikjLifjd fookg&foPNsn eatwj ds vk/kkjksa esa ls izFkDr% jguk ,d vk/kkj gs rFkk Lohd`r :i lsa i{kdkj lkr o"kZ ls vf/kd ls i`FkDr% jg jgs gSA
blfy,] vihy eatwj dh tkrh gSA mPp U;k;ky; dk vkf{kIr fu.kZ; rFkk vkns‘k vikLr fd;k tkrk gS rFkk fganw fookg vf/kfu;e] 1955 dh /kkjk 13[k ds v/khu ikjLifjd fookg&foPNsn eatwj djus ds fy, vthZ Lohdkj dh tkrh gSA ¼1991½2 ,l lh lh 25 vuqlfjrA ¼1997½4 ,l lh lh 226] ¼1993½2 ,l lh lh 6] ¼1998½8 ,l lh lh 369] ¼1997½11 ,l lh lh 490] ¼2000½10 ,l lh lh 243] ¼2002½10 ,l lh lh 194] ¼2004½1 ,l lh lh 123] ¼2005½13 ,l lh lh 410 rFkk ¼2007½2 ,l lh lh 220 foosfprA ¼iSjk 32 ls 36½
Kabir, J. -- 1. Leave granted. The short point for decision in this appeal is whether a decree can be passed on a petition for mutual divorce under section 13B of the Hindu Marriage Act, 1955, when one of the petitioners withdraws consent to such decree prior to the passing of such decree.
2. In the instant case, the appellant husband was married to the respondent wife on 22.6.1985 according to Hindu rites. On account of differences between them, they took a decision to obtain a decree of mutual divorce, which resulted in the filing of a joint petition for divorce under section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") on 4.9.2004 in the District Court at Chhindwara. The same was registered as Civil Suit No.167-A of 2004.
3. As required under the provisions of section 13B of the aforesaid Act, the learned Second Additional District Judge, Chhindwara, fixed the date for consideration of the petition after six months so as to give the parties time to reconsider their decision.
4. On 7.3.2005, after the expiry of six months, the learned Second Additional District Judge, Chhindwara, took up the matter in the presence of both the parties who were present in the Court. While the appellant husband reiterated his earlier stand that a decree of mutual divorce should be passed on account of the fact that it was not possible for the parties to live together, on behalf of the respondent wife it was submitted that despite serious differences which had arisen between them, she did not want the marriage ties to be dissolved.
5. On account of withdrawal of consent by the respondent wife, the learned Judge dismissed the joint petition under section 13B of the Act. Aggrieved by the order dated 17.3.2005, passed by the learned Second Additional District Judge, Chhindwara, the appellant filed an appeal under section 28 of the Act in the High Court of Madhya Pradesh at Jabalpur on. 4.4.2005 and the same was registered as First Appeal No.323 of 2005.
6. Even before the High Court, on 12.3.2007, the respondent wife expressed her desire to live separately from the appellant, but she dig not want that a decree of dissolution of marriage be passed. In that view of· the matter, by his order dated 21.3.2007, the learned Single Judge dismissed the first appeal.
7. While dismissing the appeal, the learned Single Judge took note of the decision of this Court in similar circumstances in Ashok Hurra v. Rupra Bipin Zaveri [(1997)4 SCC 226], wherein this Court granted decree of mutual divorce by exercising its extraordinary powers under Article 142 of the Constitution of India. It was indicated that the High Court did not have such powers and section 13B required that the consent of the spouses on the basis of which the petition under section 13B was presented, had to continue till a decree of divorce was passed by mutual consent. On that basis, the learned Single Judge of the High Court, while dismissing the appeal, observed that the appellant would be free to file a petition of divorce in accordance with law, which would be decided on its own merits by keeping in mind the special fact that the parties were living separately for about five years and the respondent wife was adamant about living apart from her husband.
8. It is against the said order passed by the High Court rejecting the appellant's prayer for grant of mutual divorce that the present appeal has been filed.
9. Appearing on behalf of the appellant husband, Mr. Rohit Arya, learned senior advocate, contended that prior to the filing of the petition for mutual divorce, the parties had entered into a settlement which had been fully acted upon by the appellant and that under the said agreement valuable property rights had been transferred to the respondent wife, which she was and is still enjoying.
10. Mr. Arya submitted that apart from the above, the attitude of the respondent wife in openly declaring that she had no intention to remain with
