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2018 DIGILAW 266 (MP)

Jitendra Batham v. Hemvati Bai

2018-03-07

S.A.DHARMADHIKARI, SHEEL NAGU

body2018
ORDER 1. The instant first appeal preferred under section 28A of The Hindu Marriage Act assails the order dated 2.2.2016 of the Court below by which an application under Order 23 rule 1 r/w section 151 of CPC filed by the respondent-wife seeking withdrawal of a consent alleged by her to be obtained by fraud, has been allowed and the petition for divorce by consent under section 13B of the Hindu Marriage Act preferred jointly by the rival parties, has been dismissed. 2. Learned counsel for the appellant-husband has placed strong reliance on the decision of the apex Court in the case of Ashok Hurra v. Rupa Ashok Hurrarupa Bipin Zaveri, reported in AIR 1997 SC 1266 , and a Single Bench decision of the Rajasthan High Court at Jodhpur passed in S.B. Civil Misc. Appeal No. 1250/2008 (Anil Khatwani v. Nistha Khatwani) on 10.5.2012. In the said two decisions, it is submitted by learned counsel for the petitioner that a unilateral withdrawal by a wife of her consent in a petition for divorce by consent, was ignored and the petition for divorce by consent was allowed. 3. A bare perusal of the judgment of apex Court in the case of Anil Khatwani (supra), reflects that in the peculiar facts and circumstances attending that case where the marriage in question had been irretrievably broken down and there was no hope of settlement and the rival parties were staying away from each other“since long, the apex Court without entering into legality of justification of ignoring a unilateral withdrawal of consent in a petition for divorce by consent, set aside the order of the Court below and annulled the marriage under section 13B of the Hindu Marriage Act by exercising it's extraordinary and plenary powers under Article 142 of the Constitution of India. This fact is evident from a bare perusal of paragraph 21 of the said judgment which is reproduced below for ready reference and convenience : “21. This fact is evident from a bare perusal of paragraph 21 of the said judgment which is reproduced below for ready reference and convenience : “21. We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake and that no love is lost between the parties, who have been fighting like "Kilkenny cats" and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under section 13B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards. Appropriate safeguard or provision for the respondent/wife to enable her to have a decent living should be made. The appellant is a well to do person and is a Doctor. He seems to be affluent being a member of the medical fraternity. But his conduct during litigation is not above board. The suggestion or offer of a lump sum payment of rupees four to five lakhs, towards provision for wife, is totally insufficient, in modern days of high cost of living and particularly for a women of the status of the respondent. At least, a sum of about Rs.10,000/- p.m. will be necessary for a reasonable living. Taking into account all aspect appearing in the case, more so the conduct of the parties and the admissions contained in the joint petition filed in Court, we hold that the respondent (wife) should be paid, a lump sum of rupees ten lacs (Rs.10 lacs) (and her costs in this litigation as estimated by us) on or before 10.12.1997 as mentioned hereinbelow, as a condition precedent for the decree passed by this Court to take effect.” 4. From the above, it is evident that the apex Court to do complete justice in the matter exercised it's extraordinary powers under Article 142 of the Constitution of India to annul the marriage which was irretrievably broken down by ignoring the statutory“provisions under section 13B of the Hindu Marriage Act to do complete justice and draw curtains on the long standing litigation. No such extraordinary power is available to the High Court and therefore, the said decision of the apex Court is of no avail to the petitioner. 5. As regards the decision of the Rajasthan High Court in the case of Ashok Khatwani (supra), the same is further of no avail in view of the contrary view taken by the apex Court in the following cases : (i) Smt. Sureshta Devi v. Om Prakash, reported in (1991)2 SCC 25 , the relevant portion of which is reproduced below : “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 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 13B is clear on this point. It provides that "on the motion of both the parties .... 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 13B 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 bonafides 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.” (underlining supplied) (ii) Anil Kumar Jain v. Maya Jain reported in (2009) 10 SCC 415 , the relevant portion of which is reproduced below : “30. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under section 13 of the Hindu Marriage Act, 1955, into one under section 13B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.” 6. In view of the above, the impugned order of the Court below dismissing the petition for divorce by mutual consent on the ground of unilateral withdrawal of consent by wife does not suffer from any illegality, impropriety or material irregularity. 7. Consequently, the present appeal stands dismissed.