Sureshta Devi vs. Om Prakash case interpreted Section 13-B of the Hindu Marriage Act and held that it was apparent that the filing of the petition with mutual consent does not allow the court to make a decree for divorce. The statutory waiting period from 6 to 18 months enables the parties to have a second thought and another chance to reconcile.
CITATION: 1992 AIR 1904, 1991 SCR (1) 274
BENCH: Shetty, K.J. (J)
FACTS OF SURESHTA DEVI V. OM PRAKASH CASE:
- The marriage between the appellant and the respondent took place on 21 November 1968. On 8 January 1985, a petition under Section 13-B for divorce by mutual consent was being filed in the District Court and the statement of the parties were being recorded on 9 January 1985.
- Further, an application was filed by the appellant on 15 January 1985 stating that the statement dated 9 January was given by her under pressure and threat of the Respondent. It was also alleged that before filing the petition for divorce; the appellant was not even allowed to see or meet her relations for consultation nor were they permitted to accompany her to the Court. Hence, the appellant prayed for the dismissal of the petition.
- The petition was initially dismissed by the District Court but on appeal, the High Court reversed the order and granted a decree of divorce by holding that the consent to a petition for divorce by mutual consent cannot be unilaterally withdrawn and the jurisdiction of the court cannot be taken away by such withdrawal; if the consent was otherwise free. Thereupon, the appeal was being filed by the appellant.
LEGAL ISSUES:
Whether a party to a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 can unilaterally withdraw the consent, or whether the consent once given is irrevocable?
RATIO DECIDENDI:
- In view of the above-concerned question, the Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe expressed the view that the crucial time for the consent for divorce under Section 13-B was the time when the petition was filed.
- If the consent was given voluntarily, it would not be possible for any party to nullify the petition by withdrawing the consent. A similar view was adopted by the High Court of Delhi in Smt. Chander Kanta v. Hans Kumar and Anr. AIR 1989 and the High Court of Madhya Pradesh in Meena Dutta v. Anirudh Dutta.
- In contrast, in the Kerala High Court in K.L. Mohanan v. Jeejabai, AIR 1988 and the Rajasthan High Court in Santosh Kumari v. Virendra Kumar, AIR 1986 it was held that the consent given to a petition for divorce can be withdrawn by any of the spouses at any time before the decree is being passed by the court.
- Section 13-B of the Hindu Marriage Act is in para material with Section 28 of the Special Marriage Act, 1954. According to Section 13-B(1) of the Hindu Marriage Act, 1955 a petition for dissolution of marriage can be filed by both the parties on the ground that the parties have been living separately for a period of more than one year or more, that the parties are unable to live together and have mutually agreed that the marriage has been dissolved.
- The expression ‘living separately’ implies not living like husband and wife but has no reference to the place of living. The parties may live under the same roof but must have no desire to perform marital obligations.
- Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion requires the court to hear both the parties concerned thereby, enabling them to proceed with the case in order to satisfy themselves about the genuineness of the averments in the petition and also to find out whether the consent was obtained by force, fraud, or undue influence.
- On being satisfied that the consent was not obtained maliciously and the parties have mutually agreed to dissolve the marriage, the concerned court may pass a decree of divorce.
JUDGMENT:
The Judgment of the Court was delivered by K.JAGANNATHA SHETTY, J. in Sureshta Devi vs. Om Prakash case. Special Leave was granted, concerning the validity of a decree for dissolution of marriage by mutual consent under section 13-B of the Hindu Marriage Act.
After analyzing Section 13-B of the act, it was apparent that the filing of the petition with mutual consent does not authorize the court to make a decree for divorce. The statutory waiting period from 6 to 18 months enables the parties to have a second thought and another chance to reconcile.
It is also to be noted that the section does not mandate that if there is a change of mind, it should be by both the parties which thereby implies that if any of the parties is willing to withdraw its consent, the court cannot pass a decree of divorce by mutual consent. Thus, in light of the discussion as mentioned herein, the Court admitted the appeal and set aside the decree for dissolution of the marriage.
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