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2011 DIGILAW 1195 (KAR)

Neena Bhatnagar v. Bhaskar Mani

2011-12-09

H.S.Kempanna, N.Kumar

body2011
JUDGMENT N. Kumar, J : This appeal is filed by the wife challenging the order passed by the Family Court, Bangalore, closing the petition flied under Section 13-B of the Hindu Marriage Act, 1955 (for short, 'the Act’), on the ground that once one of the party refused to give consent, it cannot proceed with the said petition. 2. The respondent and the appellant are husband and wife, who are married on 23.2.1992 according to the Hindu rites and customs at Jaipur. They lived together till June 2007. Subsequently, they began to live apart in view of serious and irreconcilable differences between them. When all attempts to reconciliation failed and when they had no issues from the marriage, they presented a petition under Section 13-B of the Act on 17.10.2008 through a common Counsel for dissolution of their marriage. The case was numbered as M.C.No.2720/2008. It appears anterior to the presentation of the petition, they have entered into an agreement regarding their mutual obligations. The petition for divorce by consent came up for consideration before the Family Court on 17.4.2009 after the lapse of statutory period of six months. It was adjourned to 20.6.2009. The respondent changed his Counsel on 3.7.2009. The appellant was unable to be present in the Court due to business commitments. The proceedings were adjourned to 24.7.2009. The respondent engaged yet another Counsel. The respondent also filed a Memo for withdrawal of his consent. The case was posted for objection of the appellant to 27.7.2009. Objections were filed by the appellant setting out about how the respondent is going back on the terms of the compromise all hearing both the. parties and looking into the Memo as well as objections, the Court passed the order holding that once the consent has been withdrawn, the Court loses jurisdiction under Section 13-B of the Act and therefore, the Family Court dismissed the petition as closed. Aggrieved by the said order of the Family Court, this appeal is filed by the appellant. 3. Learned Counsel for the appellant submits that it is not a case where the appellant has done anything, which would disentitle her to the benefit of a decree for divorce by consent. In the statement of objections filed to the Memo, she has clearly set-out under what circumstances, the respondent has gone back on his compromise. 3. Learned Counsel for the appellant submits that it is not a case where the appellant has done anything, which would disentitle her to the benefit of a decree for divorce by consent. In the statement of objections filed to the Memo, she has clearly set-out under what circumstances, the respondent has gone back on his compromise. The Family Court without even holding an enquiry about the correctness of the stand of each party and without finding out as to who is at fault committed serious error in dismissing the petition for divorce by consent and therefore, he submits that a case for interference is made out. 4. Per contra, learned Counsel for the respondent contended that once the consent is withdrawn, there cannot be a decree for divorce by consent. The consent for divorce should be there on the day of filing of the petition and till the day the decree, for dissolution of the marriage is passed. During the interregnum, at any time either of the party to the petition withdraws the consent, the Court loses its jurisdiction to pass the decree. Therefore, he submits that no case for interference is made out. 5. In the light of the aforesaid facts and the rival contentions, the point that arise for our consideration is as under: "When one of the party to the consent petition withdraws the consent is there any obligation cast on the Family Court to hold an enquiry to find out whether withdrawal of the consent is justified and then pass appropriate orders?" 6. Section 13-B of the Act reads as under: "13-B(1) - Subject to the provisions of the 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, 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 sec.(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." 7. This problem has agitated the Apex Court more than once. The Apex Court in the case of Smt. Sureshta Devi Vs. Om Prakash reported in AIR 1992 SC 1904 , at para 13, has held as under: "From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorize the Court 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 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. The spouse may not be a 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 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 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 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... They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is 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 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 jurisdiction 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. Such a decree cannot be regarded as decree by mutual consent" 8. The correctness of this judgment was doubted by another Bench of the Apex Court in the case of Ashok Hurra Vs. Rupa Bipin Zaveri reported n (1997) 4 SCC 226 , wherein at para-16, It was held as under: "We are of opinion that in the light of the factsituation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant's Counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter. It may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13-B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi case or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi case, certain observations therein seem to be very wide and may require reconsideration in an appropriate case. In the said case, the facts were: The appellant (wife) before this Court married the respondent therein on 21.11.1968. They did not stay together from 9.12.1984 onwards. On 9.1.1985, the husband arid wife together moved a petition under Section 13-B of the Act for divorce by mutual consent. In the said case, the facts were: The appellant (wife) before this Court married the respondent therein on 21.11.1968. They did not stay together from 9.12.1984 onwards. On 9.1.1985, the husband arid wife together moved a petition under Section 13-B of the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15.1.1985, the wife filed an application in the Court stating that her statement dated 9.1.1985 was obtained under pressure and threat. She prayed for withdrawal of her consent for the petition filed under Section 13-B and also prayed for dismissal of the petition. The District Judge dismissed the petition filed under Section 13-B of the Act. In appeal, the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would• not take away the Jurisdiction of the Court to dissolve the marriage by mutual consent, of the consent was otherwise free. It was found that the appellant (wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that consent. The issue that came up for consideration before this Court was, whether a party to a petition for divorce by mutual consent under Section 13-B of the Act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the date of filing of the joint petition under Section 13-B. It was within the time-limit prescribed under Section 13-B(2) of the Act. On the above premises, the crucial question was whether the consent given could be unilaterally withdrawn. The question as to whether a party to a Joint application filed under Section 13-B of the Act can withdraw the consent beyond the time-limit provided under Section 13-B(2) of the Act did not arise for consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In the tight of the clear import of the language employed in Section 13-B(2) of the Act, it appears that in a joint petition duly filed under Section 13-B(1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregraim of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. Hit is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B(1) and suit pending shall be adjudicated by the Court as provided in Section 13-B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B (2) of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact-situation herein. The decision in Sureshta Devi case may require reconsideration in an appropriate case. We leave it there." 9. After referring to both these cases, recently, the Apex Court in the case of Hitesh Bhatnagar Vs. Deepa Bhatnagar reported in AIR 2011 SC 1637 has held as under: "11. These observations of this Court in the case of Ashok Hurra (supra.) cannot be considered to be ratio decided for all purposes and is limited to the facts of that case. In other words, the ratio laid down by this Court in the case of Sureshta Devi (supra) still holds the field. 12. In the case of Smruti Pahariya Vs. Sanjay Pahariya (2009) 13 SCC 338 , a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view: 40. 12. In the case of Smruti Pahariya Vs. Sanjay Pahariya (2009) 13 SCC 338 , a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view: 40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court did not express any view contrary to the views of this Court in Sureshta Devi. We endorse the views taken by this Court in Sureshta Devi as we find that on a proper construction of the provision in Sections 13-B(1) and 13-B(2), there is no scope of doubting the views taken in Sureshta Devi. In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case. 41. None of the Counsel for the parties argued for reconsideration of the ratio in Sureshta Devi. 42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13B of the said Act can be passed by the Court. If the petition for divorce is not formally withdrawn and is kept pending then on the date when the Court grants the decree, the Court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above. 43. In our view it is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. 13. xxx 14. xxx 15. The Court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. 13. xxx 14. xxx 15. In other words, 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 by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, 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. Otherwise, in our view, the expression 'divorce by mutual consent' would be otiose." 10. From the aforesaid provision of law and the decisions of the Apex Court, it is clear that it is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under Section 13-B of the Act. So, in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The Section categorically states that a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to the marriage together. Therefore, both the parties to the marriage should present the petition for dissolution of marriage. The said petition should aver the following facts: a) they are married before or after the commencement of the Marriage Laws (Amendment) Act, 1976. b) they have been living separately for a period of one year or more. c) they have not been able to live together, and d) they have mutually agreed that the marriage should be dissolved. In the absence of these averments in the petition, the Court gets no jurisdiction to pass a decree for divorce. 11. After the presentation of the petition sub-section (2) of Section 13B provides the time limit for the Court to pass a decree for dissolution of marriage. In the absence of these averments in the petition, the Court gets no jurisdiction to pass a decree for divorce. 11. After the presentation of the petition sub-section (2) of Section 13B provides the time limit for the Court to pass a decree for dissolution of marriage. The Court gets jurisdiction to pass a decree for divorce only after the expiry of six months from the date of presentation of the petition. After the expiry of six months and before the expiry of eighteen months, the Court has to pass a decree for dissolution of marriage. It is open to either of the parties or both the parties to withdraw the petition in the meantime. If the petition is not withdrawn, the passing of a decree for divorce is not automatic. The Court shall hear the parties and after making such enquiry as it thinks fit regarding the averments in the petition and only after being satisfied that these averments are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. The enquiry referred to under sub-section (2) of Section 13-B is regarding truthfulness of the averments made in the joint petition, if the petition is not withdrawn within the period stipulated. If the petition is withdrawn, the question of holding any enquiry regarding truthfulness of the averments in the petition would not arise. The period of interregnum of six to eighteen months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of eighteen months, the petition duly filed under Section 13-B(1) and still pending shall be adjudicated by the Court as provided under Section 13-B(2) of the Act. The said adjudication should relate only to the truthfulness of the averments in the petition. It is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the Act can be passed by the Court. If the petition for divorce is not formally withdrawn and is kept pending, on the day when the Court grants the decree, the Court has the statutory obligation to hear the parties to ascertain the truthfulness of the averments in the petition. If the petition for divorce is not formally withdrawn and is kept pending, on the day when the Court grants the decree, the Court has the statutory obligation to hear the parties to ascertain the truthfulness of the averments in the petition. Thus consent petition can be withdrawn either by both the parties or by anyone of the parties to the consent petition. In other words, it can be unilaterally withdrawn by either of the parties to the petition. Once the consent is withdrawn by either of the parties to the petition, the Court loses its jurisdiction to pass a decree for divorce under this provision. Otherwise, the expression divorce by mutual consent' would be otiose. There should be consent on the date of petition, which is evidenced by filing of a petition under this provision jointly by the parties to the marriage. The said consent should be there on the date the Court passes the decree. Even if the consent continues till the date of the passing of the decree for dissolution of marriage, the Court is under statutory obligation to hold an enquiry to find out whether the grounds mentioned under Section 13B(1) of the Act exists. It is only on the Court being satisfied about the existence of the facts mentioned under Section 13- B(1) of the Act and the consent given by the parties at the time of presenting the petition continues on the date of the enquiry, the Court can pass a decree for divorce by mutual consent. Therefore, the enquiry contemplated under sub-section (2) of Section 13-B is not to find out whether the party withdrawing the consent was justified in withdrawing the consent or whether such a party is blackmailing the other party or whether such a party after getting certain benefits at the time of or after presenting the petition is going back on such promise/consent. These aspects cannot be the subject matter of enquiry under sub-section (2) of Section l3-B as contended by the learned Counsel for the petitioner. 12. Therefore, we do not see any error committed by the Family Court in dismissing the petition for divorce for mutual consent on the ground that one of the parties to the marriage and the joint petition has withdrawn the consent, thus depriving the Family Court its jurisdiction to pass a decree for divorce by consent. Accordingly, this appeal is dismissed. Therefore, we do not see any error committed by the Family Court in dismissing the petition for divorce for mutual consent on the ground that one of the parties to the marriage and the joint petition has withdrawn the consent, thus depriving the Family Court its jurisdiction to pass a decree for divorce by consent. Accordingly, this appeal is dismissed. No costs.