A

SMT. SURESHTA DEVI

v.

OM PRAKASH

FEBRUARY 7, 1991

B [K. JAGANNATHA SHETTY AND S.C. AGRAWAL, JJ.]

c

Hindu Marriage Act, 1955: Section 13-B and 23(J)(bb)-Divorce

by mutual consent-Filing of a petition under section 13-B( 1) does not 'r--

by itself snap marital ties-Parties are required to file a joint motion

under Section 13-B(2)-Joint Motion before

the Court for hearing of the

peti-

tion should be 'of both the parties'-Mutual consent should continue till .r

passing of decree-A spouse can unilaterally withdraw his consent .... _

before passing

of the divorce decree-Requirements of Section 13-B

explained-Expression 'living separately' and 'have not been able to live

together'-Scope and meaning of.

'y _

D Special Marriage Act, 1954: Section 28.

E

F

The appellant-wife and the respondent-husband filed a petition

under section 13-B of the Hindu Marriage Act, 1955 for divorce by

mutual consent in the District Court and their statements were

recorded. Subsequently, the appellant filed an application in the Court

for dismissal of the petition stating that she was not willing to be a party

to the petition and that her statement was obtained under threat and

pressure of husband. The District Judge dismissed the petition but on

appeal the High Court reversed the order of the District Judge and

granted a decree of divorce by holding that the consent to a petition for

divorce

by mutual consent cannot be unilaterally withdrawn and such a

withdrawal would not take away the jurisdiction of the Court, if the

+--

consent was otherwise free; and since the wife's consent was without -,,.-

any force, fraud or undue influence she was bound by the consent. -..,.

1

Hence this appeal by the wife.

Allowing the appeal

and setting aside the decree of divorce,

this

-

G Court, -

HELD: 1. An analysis of Section 13-B makes it apparent that the

filing

of the petition under section 13-B(l) with mutual consent does not

'>----·

authorise the Court to make a decree for divorce. The parties are

required to make a joint motion under sub-section (2) which should not

H

be earlier than six months after the date of presentation of the petition

274

SURESHTA DEVI v. OM PRAKASH 275

and not later than 18 months after the said date. This motion enables

the Court to proceed with the case in order to satisfy itself about the

genuineness

of the averments in the petition and also to f'md out

whether the consent was not obtained by force, fraud or undue influ­

ence. The

Court may make such inquiry as it thinks fit including the

hearing or examination of the parties for the purpose of satisfying

itSelf

whether the averments in the petition are true. If the Court is satisfied

· that the consent of the parties was not obtained by force, fraud or

undue influence and they have mutually agreed that the marriage

should be dissolved, it must pass a decree of divorce'. [280D, 279C-D]

2. The period of waiting from 6 to 18 months referred to in

section 13-B(2) is intended to give time and opportunity to the parties to

reflect on their move and seek advice from relations and friends. In this

transitional period one of the parties may have a second thought and

~ / change the mind not to proceed with the petition i.e. it may not be a

party to the joint motion under sub-section (2). This sub-section

requires the Court to hear the parties which means both the parties.

But the section does not provide that if there is a change of mind. it

should not be by one party alone, but by both. Therefore, if one of the

parties at that stage withdraws its consent 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 nega-

'\....---J..,. tes the whole idea of mutuality and consent for divorce. Mutual con­

sent to the divorce is a sine qua non for passing a decree for divorce

under section 13-B. Mutual consent should continue till the divorce

decree is passed. It is a positive requirement for the Court to pass

a decree

of divorce.

[280D, 281A-B]

K.1. Mohanan v. Jeejabai, A.I.R. 1988 Ker. 28; Harcharan Kaur

A

B,

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-, v. Nachhattar Singh, A.I.R. 1988 P & H. 27 and Santosh Kumari v. F

Y -Virendra Kumar, A.I.R. 1986 Raj. 128; approved.

Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, A.I.R.

1984 Bom. 302; Smt. Chander Kanta v. Hans Kumar and Anr., A.I.R.

1989 De. 4 73;

and Meena Dutta v. Anirudh Dutta, 1984 II DMC 388

(MP); overruled. G

Halsbury Laws of England, 4th Edn.

Vol. 13 para 645; Rayden

on Divorce, 12 Edn. Vol. 1 p. 291 and Beales v. Beales, 1972 2 All E.R.

667; referred to.

3. Section 13-B of the Hindu Marriage Act is in pari materia with H

A

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276 SUPREME COURT REPORTS [1991} 1 S.C.R.

Section 28 of the Special Marriage Act, 1954. Sub-Section (1) of section

13-B

requires that the petition for divorce by mutual

consent must be

presented to the Court jointly by both the parties. There are three other

requirements in sub-section (1). Firstly,'it is necessary that immediately

preceding the presentation of the petition the parties must have been

living separately for a period

of one year or more. The expression

'living separately' connotes not living like husband and wife. It has no

reference to the place of living. The -parties may live under the same

roof by force of circumstances, and yet

they may not be living as

husband 'and wife. The parties may be living in different houses and yet

they could live as husband and wife. What seems to be necessary is that

they have no desire to perform marital obligations and with that mental

attitude they have been living separately for a period of one year

C immediately preceding the presentation of the petition. The second

requirement is that they 'have not been able to live together' which

indicates the concept of broken down marriage and it would not be

possible to reconcile themselves. The third requirement is that they

have mutually

agreed that the

marriage should be dNiolved. [278E-H, 279A-B]

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F

CIVIL APPELLATE

JURISDICTION: Civil Appeal No. 633

of 1991.

From the Judgment and Order dated 1.8.1989 of the Himachal

Pradesh High Court in F.A.O. (H.M.A.) No. 28of1989.

Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellant.

Subhagmal

Jain and H.K. Puri for the

Respondent

The Judgment of the Court was delivered by

K. JAGANNATHA SHETTY, J. Special Leave granted.

This appeal from a decision

of the Himachal Pradesh High Court

concerns the validity of a decree of dissolution of marriage by mutual

.

consent, and is said, probably rightly, to raise an important issue. The

G issue is whether a party to a petition for divorce by mutual consent

under

Section 13B of the Hindu Marriage Act, 1955 ('Act') can· unila-

terally withdraw the consent or whether the consent once given is r

irrevocable. ·

The appellant is the wife of the respondent. They were married

H

on 21 November 1968. They lived together for about six to seven

)

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SURESHTA DEVI v. OM PRAKASH [SHETTY, J.] 277

months. Thereafter, it is said that the wife did not stay with the

husband except from 9 December 1984 to 7 January 1985. That was

pursuant to an order of the Court, but it seems that they did not

live like husband and wife during that period also. On 8 January 1985,

both of them came to Hamirpur. The wife was accompanied by her

counsel, Shri Madan Rattan.

After about an hour discussion, they

moved a petition under Section

13-B for divorce by mutual consent in

the District Court at Hamirpur.

On 9 January 1985, the Court

recorded statements of the parties and left the matter there.

A

B

On 15th January 1985, the wife filed an application in the Court,

inter alia, stating that her statement dated 9 January 1985 was obtained

under pressure and threat of the husband and she was· not even C

allowed

to see or meet her relations to consult them before filing the

petition for divorce. Nor they were permitted to accompany her to the

Court. She said that she would not be party to the petition and prayed

for its dismissal. The District Judge made certain orders which were

taken up in appeal before the High Court and the High Court

remanded the matter to the District Jud.ge for fresh disposal. Ulti-D

mately, the District Judge dismissed the petition for divorce. But upon

appeal the High Court has reversed the order of the District Judge and

granted a decree for dissolution of the marriage by mutual consent.

The High Court has observed that the spouse who has given consent to

a

petition for divorce cannot unilaterally withdraw the consent and

such with-drawal however, would not take away the jurisdiction of the E

Court to dissolve the marriage by mutual consent, if the consent was

otherwise free.

The High Court also recorded a finding that the wife

gave

her consent to the petition without any force, fraud or undue

influence

and therefore she was bound by that consent.

Section

13-B was not there in the original Act. It was introduced F

by the Amending Act 68 of 1976. Section 13-B provides:

"13-B(l) Subject to the provisions of the Act a petition for

dissolution

of marriage by a decree of divorce may be pre­

sented to the district court by both the parties to

a marriage

together, whether such marriage was solemnized before or G

after the commencement

of the Marriage Laws (Amend­

ment) Act, 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.

H

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F

278 SUPREME COURT REPORTS [1991] 1 S.C.R.

(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

effe~t from the date of the decree."

It is also necessary to read Section 23(1)(bb):

23(1)

In any proceeding under this Act, whether defended

or not, if the Court is satisfied that-

(bb) When a divorce is sought on the ground of mutual

consent, such consent has

not been obtained by force,

fraud

or undue influence, and ....

"

Section 13-B is in pari .materia with Section 28 of the Special

Marriage Act, 1954. Sub-section (1) of Section 13-B requires that the

petition for divorce by mutual consent must be presented to the Court

jointly by both the parties. Similarly, sub-section (2) providing for the

motion before the Court for hearing of the petition should also be by

both the parties.

There are three other requirements in sub-section (1). There are:

(i)

They have been living separately for a period of one year.

(ii)

They have not been able to live together, and

(iii) They have mutually agreed

that marriage should be dis­

solved.

·

)--·

·~-

,,.._ __

--

G The 'living separately' for a period of one year should be

immediately preceding the presentation

of the petition. It is neces-

sary that immediately preceding the presentation of petition, the

>--

parties must have been living separately. The expression 'living sepa-

rately', connotes to our mind not living like husband and wife. It has

no reference to the place of living. The parties may live under the same

H roof by force of circumstances, and yet they may not be living as

SURESHTA DEVI v. OM PRAKASH [SHETTY, J.] 279

husband and wife. The parties may be living in different houses and yet

they could live as husband and wife. What seems to be necessary is that

they have no desire to perform marital obligations and with that

attitude they have been living separately for a period of one year

immediately preceding the presentation of the petition. The second

requirement that they 'have not been able to live together'

seems to

indicate the concept

of broken down marriage and it would not be

possible

to reconcile themselves. The third requirement is that they

have mutually agreed that the marriage should be dissolved.

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

enables the Court to proceed with the case in order to satisfy itself

about the genuineness of the averments in the petition and also to find

out whether the consent was not obtained by force, fraud or undue

influence. The Court may make such inquiry

as it thinks fit including

the hearing or examination of the parties for the purpose of satisfying

itself whether the averments in the petition are true.

If the Court is

satisfied that the consent of parties was not obtained by force, fraud or

undue influence and they have mutually agreed that the marriage

should

be dissolved, it must pass a decree of divorce.

The question with which we are concerned is whether it is open

to one of the parties at any time till the decree of divorce is passed to

withdraw the consent given to the petition. The need for a detailed

study

on the question has arisen because of the fact that the High

Courts do not speak with one voice on this aspect. The Bombay High

Court in Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR

1984 Born.-

302, has expressed the view that the crucial time for the

consent for divorce under Section 13-B was the time when the petiti~n

was filed. If the consent was voluntarily given it would not be possible

·for any party to nullify the petition by withdrawing the consent. The

court has drawn support to this conclusion from the principle underly­

ing Order XXIII Rule 1 of the Code of Civil Procedure which provides

that if a suit is filed jointly by one or more plaintiffs, such a suit or a

part of a claim cannot be abandoned or withdrawn by one of the

plaintiffs

or one of the parties to the suit. The High Court of Delhi

adopted similar line of reasoning in

Smt. Chander Kanta v. Hans

Kumar and Anr., AIR 1989 Delhi 73 and the Madhya Pradesh High

Court in Meena Dutta v'.. Anirudh Dutta, [1984] II DMC 388 also took a

similar view.

A

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G

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280 SUPREME COURT REPORTS [1991] 1 S.C.R.

A

But the Kerala High Court in K.I. Mohanan v. Jeejabai, AIR

~

1988 Kerala 28 and the Punjab and Haryana High Court in Harcha-

ran Kaur v. Nachhattar Singh, AIR 1988 Punjab & Haryana 27 and

Rajasthan High Court in Santosh Kumari v. Virendra Kumar, AIR

1986 Rajasthan 128 have taken a contrary view. It has been inter alia,

held that it is open to one of the spouses to withdraw the consent given

B

to the petition at any time before the Court passes a decree for

divorce.

The satisfaction of the Court after holding an inquiry about

the genuineness of the consent, necessarily contemplates an opportu-

'r-

nity for either of the spouses to withdraw the consent. The Kerala

High Court in particuJar has ruled out the application of analogy under

Order XXIII Rule 1 of the Code of Civil Procedure since it is dissimilar

< to the situation.arising under Section 13-B of the Act. -c

From the analysis of the Section, it will be apparent that the

filing

of the petition with mutual consent does not authorise the court 'Y'-to make a decree for divorce. There is a period of waiting from 6 to 18

months. This interregnum was obviously intended to give time and

D ·opportunity to the parties to refled on their move and seek advice

from relations and friends. In this transitiona,l period one ofthe parties

may have a second thought and change the mind not to proceed with

the petition. The spouse may not be

party to the joint motion under

sub-section (2). There is nothing in the Section which prevents such

course.

The Section does not provide that if there is a change of mind it

~----

E should not be by one party alone, but by both. The High Courts of

Bombay and Delhi have proceeded on the ground that the crucial time

for giving mutual consent for divorce is the time of filing the petition

and not the time when they subsequently move for divorce decree.

This approach appears

to be untenable. At the time of the petition by

mutual consent, the parties are not unaware that their petition does

F

not by itself snap marital ties. They know that they have to take a

further

"Step to snap marital ties. Sub-section (2) of Section 13-B is -y~r

clear on this point. It provides that "on the motion of both the parties

.... if the petition is not withdrawn in the meantime, the Court shall

... pass a decree of divorce ... " What is significant in this provision is

that there should also be mutual consent when they move the court

G with a request to pass a decree

of divorce. Secondly, the Court shall be

satisfied

about the bona fides and the consent of the parties. If there is

no mutual consent at the time of' the enquiry, the·court gets no juris-)---

diction to make a decree for divorce. If the view is otherwise; the

Court could make an enquiry and pass a divorce decree even at the

instance of one of the parties and against the consent of the other.

H Such a decree cannot be regarded as decree by mutual consent.

-~

- _.j

SURESHTA DEVI v. OM PRAKASH [SHElTY, J.] 281

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 "J

have withdrawn my consent", or "I am not a willing party to the

divorce", the Court cannot pass a decree of divorce by mutual con­

sent. 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 mutualitly

and consent for divorce. Mutual consent to the divorce is a sine qua

non for passing a decree for divorce under Section 13-B. Mutual con­

sent should continue till the divorce decree is passed. It is a positive

requirement for the court to pass a decree of divorce. "The consent

must continue to decree nisi and must be valid subsisting consent when

the case is heard". [See (i) Halsbury Laws of E~gland, Fourth Edition

Vol.

13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol. 1 p. 291 and

(iii)

Beales v. Beales, [1972) 2 All E.R. 667 at 6741.

In our view, the interpretation given to the section by the High

Courts of Kerala, Punjab & Haryana and Rajasthan in the aforesaid

decisions

appears to be correct and we affirm that view. The decisions

of the High Courts of Bombay, Delhi and Madhya

Pradesh (supra)

cannot be said to have laid down the law correctly and they stand .

overruled.

In the result, we allow the appeal and set aside the decree for

dissolution

of the marriage. In the circumstances of the case, however,

we make on order as to costs.

T.N.A. Appeal allowed.

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