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2014 DIGILAW 1277 (PNJ)

Sanjeev Singla v. Ritika Singla

2014-09-10

BHARAT BHUSHAN PARSOON, MUTTACI JEYAPAUL

body2014
Muttaci Jeyapaul, J. 1. Aggrieved by the dismissal of the petition filed by the appellant and the respondent jointly for dissolution of marriage by a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, the present appeal is filed. Both parties presented a petition seeking dissolution of marriage by a decree of divorce by mutual consent. On the first motion on 3.10.2011, statements of both parties were recorded by the Court. Of course, they gave mutual consent for divorce, however, when the matter was taken up during second motion on 24.4.2012 after a lapse of statutorily mandated six months' period, the respondent who is the wife of the appellant, came out with the statement that she did not want to get the marriage dissolved by a decree of divorce. In other words, she withdrew her consent for dissolution of their marriage by a decree of divorce. Appellant herein who is the husband of the respondent insisted that a decree of divorce by mutual consent should be granted as he stood by his consent. 2. Trial Court dismissed the petition as the respondent was not agreeable for dissolution of marriage by mutual consent during second motion. 3. Section 13-B of the Hindu Marriage Act, 1955, reads as under:-- "13B. Divorce by mutual consent.--(1) Subject to the provisions of this 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 (68 of 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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 effect from the date of the decree." 4. Both the spouses are supposed to join together in presenting a petition. Their mutual agreement to snap the marital tie should be expressed in the petition filed for divorce by mutual consent. The matter is supposed to be posted not earlier than six months. In fact, Section 13-B(2) contemplates moving of a petition by both the parties again not earlier than six months after the date of presentation of the petition under sub-section (1) of Section 13-B to enable the Court to make an enquiry for subjective satisfaction as to whether the marriage was in fact solemnized between the parties and whether the averments in the petition as to the mutual consent given by both the parties are true for the purpose of passing a decree of divorce declaring the marriage to be dissolved. 5. On a careful reading of Section 13-B of the aforesaid Act, it is found that both the parties should jointly move the petition, for dissolution of marriage. Second motion should also be moved by the parties jointly. In case the second motion as contemplated under Sub-section (2) of Section 13-B was not made by both the parties, it can be presumed that one of the parties had withdrawn his/her consent given at the first motion. Under such circumstances, the question of grant of divorce by mutual consent which shall subsist throughout right from the first motion till the second motion which culminates in passing of the decree by mutual consent, does not arise for consideration. 6. Of course, the learned counsel appearing for the appellant submitted a decision of the Bombay High Court in Rajesh S/o. Pratap Sainani v. Bhavna W/o. Rajesh Sainani, 2009(1) Civil Court Cases 0199. 6. Of course, the learned counsel appearing for the appellant submitted a decision of the Bombay High Court in Rajesh S/o. Pratap Sainani v. Bhavna W/o. Rajesh Sainani, 2009(1) Civil Court Cases 0199. In our view, the above decision passed by the learned Single Judge of the Bombay High Court runs contrary to the view taken by the Hon'ble Supreme Court in Smt. Sureshta Devi v. Om Parkash, (1991-1)99 P.L.R. 41 (S.C.) : (1991)2 Supreme Court Cases 25 which reads as follows:-- "13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise 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 what is significant in... if the petition is not withdrawn in the meantime, the court shall.....pass a decree of divorce 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. 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. 14. 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. Mutual consent 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. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard." 7. In Smruti Pahariya v. Sanjay Pahariya, (2009-3)155 P.L.R. 473, it has been held by the Hon'ble Supreme Court as follows:-- "49. We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13B of the said Act can be passed by the Court. If 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 facts situation, discussed above. 50. 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 13B. So in cases under Section 13B, mutual consent of the parties is a jurisdictional fact. 50. 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 13B. So in cases under Section 13B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13B 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. In the facts of the case, the impugned decree was passed within about three weeks from the expiry of the mandatory period of six months without actually ascertaining the consent of the husband, the respondent herein." 8. This Court in Prem Lata v. Ashok Kumar, 2010(2) R.C.R. (Civil) 464 and Deepak Kumar v. Poonam Rani, (2011-3)163 P.L.R. 27, followed the above decisions of the Hon'ble Supreme Court and held that if mutual consent did not subsist during second motion, there was no question of granting divorce by mutual consent. 9. Both the parties are supposed to move second motion not earlier than six months after the date of presentation of the petition for divorce by mutual consent. It implies that even during second motion, mutual consent shall subsist; otherwise, there would have been no scope for both the parties to join together for making second motion. Mutual consent shall be expressed by both parties together. If one of the parties backs out of the mutual consent for whatever reason it may be, the petition for divorce by mutual consent is liable to be dismissed. In our considered view, the trial Court has rightly decided the issue involved in this case and dismissed the petition filed under Section 13-B of the Hindu Marriage Act, 1955. There is no merit in the appeal. Therefore, the appeal stands dismissed.