Smt. Sureshta Devi V. Om Prakash

CASE BRIEF

Appellant- Smt. Sureshta Devi

Respondent- Om Prakash

Decided On: 7.02.1991

Equivalent Citations:

1. 1992 AIR 1904
2. 1991 SCR (1) 274

Bench:

1. Shetty, K.J. (J)
2. Agrawal, S.C. (J)

Statutes Referred:

1. Hindu Marriage Act, 1955
2. Marriage Laws (Amendment) Act, 1976
3. Special Marriage Act, 1954

Cases Referred:

1. Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bom. 302
2. Smt. Chander Kanta v. Hans Kumar and Anr., AIR 1989 Delhi 73
3. Meena Dutta v. Anirudh Dutta, [1984] 11 DMC 388
4. K.L Mohanan v. Jeejabai, AIR 1988 Kerala 28
5. Harcharan Kaur v. Nachhattar Singh, AIR 1988
6. Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128
7. Beales v. Beales, [ 1972] 2 All E. R. 667 at 674

Facts:

1. This is an appeal, challenging the decision of the Himachal Pradesh High Court, concerned with the validity of a decree of dissolution of marriage by mutual consent.
2. The appellant, the wife of the respondent, was married to the latter on November 21, 1968, and had lived together for about six to seven months thereafter.
3. After the completion of such period of time, the wife was said not to have lived with the husband anymore except for the period between December 9, 1984, and January 7, 1985.
4. The period between December 9, 1984, and January 7, 1985, was the result of a decision of the Court but they did not live together as husband and wife during the mentioned time period as well.
5. Both the parties came to Hamirpur on January 8, 1985, where the wife (appellant) was accompanied by Shri Madan Rattan, her counsel.
6. After a discussion that probably lasted for an hour, a petition under Section 13-B for divorce by mutual consent was moved by the parties in the District Court at Hamirpur.
7. On January 9, 1985, the matter was left there after the Court recorded the statements of the parties.
8. An application was filed by the wife (appellant) on January 15, 1985, which stated, inter alia, that her consent on her statement dated January 9, 1985, was acquired under pressure and threat of the husband (respondent) and that she was not even allowed to meet her relations for the purpose of consulting them before the petition for divorce was filed. It was also stated that her relations were not even permitted to accompany her to the Court and that it was not her desire to be a party to the petition and a prayer for the dismissal of such petition was made.
9. Certain orders were made by the District Judge, which was later taken up in appeal by the High Court and the matter was finally remanded to the District Judge for the purpose of fresh disposal, where the petition for divorce was dismissed by the District Judge.
10. However, upon appeal to the High Court, the order given by the District Judge was reversed and a decree for dissolution of the marriage by mutual consent was granted.
11. It was observed by the High Court that upon giving consent to a petition for divorce, a spouse cannot unilaterally withdraw the consent and that the Court would still have the jurisdiction to dissolve the marriage by mutual consent in case of such withdrawal if the consent was otherwise free.
12. It was further recorded by the High Court that the consent given by the wife was without any force, fraud, or undue influence, thereby binding her to such consent.

Issue:

1. Whether a party to a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 can unilaterally withdraw the consent or whether the consent, once given, is irrevocable.

Ratio Decidendi:

1. An analysis of Section 13-B and Section 23(l)(b) of the Hindu Marriage Act, 1955 makes it clear that the mutual consent of the parties during the filing of the petition is not what gives the Court the authority to pass a decree of divorce under mutual consent.
2. The period of waiting for 6-18 months is meant for the purpose of changing of mind of either of the parties or both before the joint motion.
3. Under Sub-Section (2) of Section 13-B of the aforesaid Act, there is nothing that prevents either of the Spouse from not being a party to such joint motion.
4. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce.
5. Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce.

Judgement:

1. The decisions of the High Courts of Kerala, Punjab & Haryana, and Rajasthan and their interpretation of the relevant sections is one that the Supreme Court of India affirms with.
2. The decisions of the High Courts of Bombay, Delhi, and Madhya Pradesh did not lay down the law correctly and stand overruled.
3. The appeal is allowed and the decree of dissolution of the marriage is set aside.
4. No order as to costs was made.

Conclusion:

A proper analysis of the relevant sections was done by the Bench and it was the result of such interpretation that the mutual consent during the filing of the petition for divorce was not enough to give the Court, the authority to pass a decree of divorce under mutual consent. The parties needed to have the same mutual consent while making the joint motion after six to eighteen months, during which it is open to either of the parties to revoke their consent thereto.