6 Months waiver in divorce with SC only

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5952 OF 2009
(@ SPECIAL LEAVE PETITION (CIVIL)NO.14361 OF 2007)

Anil Kumar Jain … Appellant
Vs.
Maya Jain …Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1.Leave granted.
2.The short point for decision in this appeal is whether a decree can be passed on a petition for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955, when one of the petitioners withdraws consent to such decree prior to the passing of such decree.

3.In the instant case, the appellant husband was married to the respondent wife on 22nd June, 1985, according to Hindu rites. On account of differences between them, they took a decision to obtain a decree of mutual divorce, which resulted in the filing of a joint petition for divorce under Section 13-B of the Hindu Marriage Act, 1955, (hereinafter referred to as `the Act’) on 4th September, 2004, in the District Court at Chhindwara.The same was registered as Civil Suit No.167-A of 2004. As required under the provisions of Section 13-B of the aforesaid Act, the learned Second Additional District Judge, Chhindwara, fixed the date for consideration of the petition after six months so as to give the parties time to reconsider their decision. On 7th March, 2005, after the expiry of six months, the learned Second Additional District Judge, Chhindwara, took up the matter in the presence of both the parties whowerepresentintheCourt.Whilethe
appellant husband reiterated his earlier stand that a decree of mutual divorce should be passed on account of the fact that it was not possible for the parties to live together, on behalf of the respondent wife it was submitted that despite serious differences which had arisen between them, she did not want the marriage ties to be dissolved. On account of withdrawal of consent by the respondent wife, the learned Judge dismissed the joint petition under Section 13-B of the Act.

4. Aggrieved by the order dated 17th March, 2005, passed by
the learned Second Additional District Judge, Chhindwara, the
appellant filed an appeal under Section 28 of the Act in the
High Court of Madhya Pradesh at Jabalpur on 4th April, 2005,
and the same was registered as First Appeal no.323 of 2005.
Even before the HighCourt, on 12thMarch, 2007, the
respondent wife expressed her desire to live separately from
the appellant, butshe did not want that a decree of
dissolution of marriage be passed.In that view of the
matter,by his order dated 21st March,2007, thelearned
Single Judge dismissed the First Appeal. While dismissing
the appeal, the learnedSingle Judge took noteofthe
decision of this Court in similar circumstances in the case
of Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226],
wherein this Court granted a decree of mutual divorce by
exercising its extra-ordinary powers under Article 142 of the
Constitution of India. It was indicated that the High Court
did not have such powers and Section 13-B required that the
consent of the spouses on the basis of which the petition
under Section 13-B was presented, had to continue till a
decree of divorce was passed by mutual consent. On that
basis, the learned Single Judge of the High Court, while
dismissing the appeal, observed that the appellant would be
free to file a petition of divorce in accordance with law,
which would be decided on its own merits by keeping in mind
the special fact that the parties were living separately for
about five years and the respondent wife was adamant about
living apart from her husband.

5.It is against the said order passed by the High Court

rejecting the appellant’s prayer for grant of mutual divorce

that the present appeal has been filed.

6.Appearing on behalf of the appellant husband, Mr. Rohit

Arya, learned Senior Advocate, contended that prior to the

filing of the petition for mutual divorce, the parties had

entered into a settlement which had been fully acted upon by

the appellant and that under the said agreement valuable

property rights had been transferred to the respondent wife,

which she was and is still enjoying.Mr. Arya submitted that

apart from the above, the attitude of the respondent wife in

openly declaring that she had no intention to remain with the

appellant, was sufficient to indicate that the marriage had

broken down irretrievably and in similar circumstances this

Court had invoked its extra-ordinary powers under Article 142

oftheConstitutiontograntadecreeofdivorceunder

Section 13-B of the Hindu Marriage Act, even though one of

the parties had withdrawn consent before the passing of the

final decree. Reference was made to the decision in Ashok

Hurra’s case(supra), which also involved a petition under

Section 13-B of the Act.
7.However,thefactsofthesaidcasewerealittle

different from those in the instant case. In the said case,

after six months from the date of filing of the petition

under Section 13-B, an application was filed by the husband

alone for a decree of divorce on the petition under Section

13-B of the Act.Not only did the wife not join in the said

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application, she made a separate application for withdrawal

of consent given by her for mutual divorce after the expiry

of 18 months from the date of presentation of the divorce

petition.At this juncture, reference may be made to the

provisions of Section 13-B of the above Act and the same is

extracted hereinbelow :-

“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
marriagewas solemnizedbefore orafter 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-
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.”

As will be clear from the above, sub-Section (1) of

Section13-B is the enablingSection for presentinga

petition for dissolution of a marriage by a decree of divorce

by mutual consent. One of the grounds provided is that the

parties have been living separately for a period of one year

or more and that they have not been able to live together,

which is also the factual reality in the instant case.Sub-

Section (2) of Section 13-B, however, provides the procedural

steps that are required to be taken once the petition for

mutual divorce has been filed and six months have expired

from the date of presentation of the petition before the

Court.The language is very specific in that it intends that

on a motion of both the parties made not earlier than six

monthsafter the date ofpresentationofthepetition

referred to in sub-Section (1) and not later than 18 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,

pass adecree of divorce declaringthe marriage tobe

dissolved with effect from the date of the decree.

8. The question whether the consent of both the parties
given at the time of presentation of the petition for mutual

divorce under Section 13-B of the Act must continue till the

decree is finally passed, has been the subject matter of

several decisions of this Court. The issue was raised in the

case of Smt. Sureshta Devi vs. Om Prakash [(1991) 2 SCC 25],

wherein this Court held that the consent given by the parties

to the filing of a petition for mutual divorce had to subsist

till a decree was passed on the petition and that in the

event, either of the parties withdrew the consent before

passing of the final decree, the petition under Section 13-B

of the Hindu Marriage Act would not survive and would have to

be dismissed.

9. Subsequently, however, in Ashok Hurra’s case (supra),

doubts were expressed by this Court with regard to certain

observations made in Sureshta Devi’s case (supra) and it was

felt thatthesame mightrequire re-consideration inan

appropriate case. Basing its decision on the doctrine of

irretrievable break-down of marriage, the Hon’ble Judges were

of theviewthatnouseful purpose wouldbeserved in

prolonging the agony of the parties to a marriage which had

broken down irretrievably and that the curtain had to be rung

down at some stage. It was further observed that the court

had to take a total and broad view of the ground realities of

the situation while dealing with adjustment ofhuman
relationships.Their Lordshipsplaced reliance on the

decision of this Court in Chandrakala Menon (Mrs.) & Anr. vs.

Vipin Menon (Capt.) & Anr. [(1993) 2 SCC 6], in arriving at

such a conclusion. In the said case, although, indisputably

consent for the petition under Section 13-B of the Act was

withdrawn within a week from the date of the filing of the

joint petition, the Court, in exercise of its powers under

Article 142 of the Constitution, granted a decree of divorce

by mutual consent under Section 13-B of the Act and dissolved

the marriage between the parties in order to meet the ends of

justice, subject to certain conditions.It was also made

clear that the decreewould take effect only upon

satisfaction of the conditions indicated therein.

10. The decision in Ashok Hurra’s case (supra) to invoke the

power under Article 142 of the Constitution was, thereafter,

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followed inseveral casesbased upon the doctrine of

irretrievable break-down of marriage.

11. In keeping with the trendof thought which found

expression in Ashok Hurra’s case (supra) another question

arose before this Court in the case of Sandhya M. Khandelwal

vs. Manoj K. Khandelwal [(1998) 8 SCC 369], which had come up

beforethis Courtby wayof atransferpetition seeking

transfer of a matrimonial suit. During the pendency of the
transferpetition beforethis Court, the parties settled

their disputes,and, although, thepetition involveda

proceeding under Section 13 of the Hindu Marriage Act, 1955,

keeping in mind the settlement arrived at between the parties

and also the interest of the parties, this Court granted a

decree of divorce by treating the pending application as one

under Section 13-B of the said Act.

12. The views expressed in Ashok Hurra’s case (supra) were

echoed in Anita Sabharwal vs. Anil Sabharwal [(1997) 1 SCC

490] and in the case of Kiran vs. Sharad Dutt [(2000) 10 SCC

243].In the former case decree for mutual divorce was

granted withoutwaitingfor the statutoryperiod of six

months. In the latter case, after living separately for many

years and after 11 years of litigation involving proceedings

under Section 13 of the Hindu Marriage Act, 1955, the parties

filed a joint application before this Court for amending the

divorce petition.Treating the said divorce petition as one

under Section 13-B of the Act, this Court, by invoking its

powers under Article142of the Constitution,granteda

decree of mutual divorce at the SLP stage.

13. Without referring to the decisions rendered by this

Court in Ashok Hurra’s case(supra) and inKiran’s case

(supra), a three Judge Bench of this Court in the case of
Anjana Kishore vs. Puneet Kishore [(2002) 10 SCC 194], while

hearing a transfer petition, invoked its jurisdiction under

Article 142 of the Constitution, and directed the parties to

file a joint petition before the Family Court at Bandra,

Mumbai, under Section 13-B of the Hindu Marriage Act, 1955,

for grant of a decree of divorce by mutual consent, along

with a copy of the terms of compromise arrived at between

the parties.ThisCourt alsodirected that onsuch

application being made, the Family Court could dispense with

the need of waiting for six months as required by Sub-Section

(2) of Section 13-B of the Act and pass final orders on the

petition within such time as it deemed fit.This Court

directed thePresidingJudgeto take appropriate steps

looking to the facts and circumstances of the case emerging

from the pleadings of the parties and to do complete justice

in the case.

14. Again in the case of Swati Verma (Smt.) vs. Rajan Verma

& Ors. [(2004) 1 SCC 123], which was a transfer petition, the

doctrine of irretrievable break-down of marriage was invoked.

Pursuant to a compromise arrived at between the parties and

leave granted by this Court, an application was filed under

Section 13-B of the Hindu Marriage Act read with Article 142

of theConstitution and havingregardtothe aforesaid

doctrine, this Court, in exercise of its powers vested under
Article 142 of the Constitution, allowed the application for

divorce by mutual consent filed in the said proceedings, in

order to give a quietus to all litigation pending between the

parties. The same procedure was adopted by this Court in the

case of Jimmy Sudarshan Purohit vs. Sudarshan Sharad Purohit

[(2005) 13SCC 410], whereupon a settlement arrived at

between the parties, a joint petition was filed under Section

13-B of the Hindu Marriage Act and the same was allowed in

exercise of powers under Article 142 of the Constitution.

15. The various decisions referred to above were considered

in some detail in the case of Sanghamitra Ghosh vs. Kajal

Kumar Ghosh [(2007) 2 SCC 220], and the view taken in the

various caseswas reiterated based onthe doctrine of

irretrievable break-down of marriage.

16. Although, the decision rendered in Sureshta Devi (supra)

was referred to in the decision rendered in Ashok Hurra’s

case(supra) anditwasobserved thereinthatthe said

decision possibly required reconsideration in an appropriate

case, none of the other cases has dealt with the question

which arose in Sureshta Devi’s case (supra), namely, whether

in a proceeding under Section 13-B of the Hindu Marriage Act,

consent of the parties was required to subsist till a final

decree was passed on the petition.In all the subsequent
cases, the Supreme Court invoked its extraordinary powers

under Article 142 of the Constitution of India in order to do

complete justice to the parties when faced with a situation

where the marriage-ties had completely broken and there was

nopossibility whatsoever of thespousescomingtogether

again.In such a situation, this Court felt that it would be

a travesty of justice to continue with the marriage ties.It

may, however, be indicated that in some of the High Courts,

which do not possess the powers vested in the Supreme Court

under Article 142 of the Constitution, this question had

arisen and it was held in most of the cases that despite the

fact that the marriage had broken down irretrievably, the

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same was not a ground for granting a decree of divorce either

under Section 13 or Section 13-B of the Hindu Marriage Act,

1955.

17. In the ultimate analysis the aforesaid discussion throws

up two propositions. The first proposition is that although

irretrievablebreak-down of marriageis notone ofthe

grounds indicated whether under Sections 13 or 13-B of the

Hindu Marriage Act, 1955, for grant of divorce, the said

doctrine can be applied to a proceeding under either of the

said two provisions only where the proceedings are before the

Supreme Court. In exercise of its extraordinary powers under

Article 142 of the Constitution the Supreme Court can grant
relief to the parties without even waiting for the statutory

period ofsixmonths stipulatedin Section13-B ofthe

aforesaid Act. This doctrine of irretrievable break-down of

marriage is not available even to the High Courts which do

not have powers similar to those exercised by the Supreme

Court under Article 142 of the Constitution.Neither the

civil courts nor even the High Courts can, therefore, pass

orders before the periodsprescribed under the relevant

provisions of the Act or on grounds not provided for in

Section 13 and 13-B of the Hindu Marriage Act, 1955.

18. The second proposition isthatalthough theSupreme

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 13-B 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
142of theConstitution, can passorders todo complete

justice to the parties.

19. The various decisions referred to above merely indicate

that the Supreme Court can in special circumstances pass

appropriate orders to do justice to the parties in a given

fact situation by invoking its powers under Article 142 of

the Constitution, but in normal circumstances the provisions

of thestatute havetobegiven effectto.The lawas

explained in Smt. Sureshta Devi’s case (supra) still holds

good, though with certain variations as far as the Supreme

Court is concerned and that too in the light of Article 142

of the Constitution.

20. In the instant case, the respondent wife has made it

very clear that she will not live with the petitioner, but,

on the other hand, she is also not agreeable to a mutual

divorce. In ordinary circumstances, the petitioner’sremedy

would lie in filing a separate petition before the Family

Court under Section 13 of the Hindu Marriage Act, 1955, on

the grounds available, but in the present case there are

certain admitted factswhichattract the provisions of

Section13-B thereof. One of the grounds available under

Section 13-B is that the couple have been living separately

for one year or more and that they have not been able to live

together, which is, in fact, the case as far as the parties
to these proceedings are concerned. In this case, the parties

are living separately for more than seven years. As part of

the agreementbetween the parties the appellant had

transferredvaluable propertyrights in favour of the

respondent and it was after registration of such transfer of

property that she withdrew her consent for divorce. She

still continues to enjoy the property and insists on living

separately from the husband.

21. While, therefore, following thedecision in Smt.

Sureshta Devi’s case we are of the view that this is a fit

case where we may exercise the powers vested in us under

Article 142 of the Constitution. The stand of the respondent

wife that she wants to live separately from her husband but

is not agreeable to a mutual divorce is not acceptable, since

living separately is one of the grounds for grant of a mutual

divorce and admittedly the parties are living separately for

more than seven years.

22. The appeal is, therefore, allowed. The impugned judgment

and order of the High Court is set aside and the petition for

grant ofmutual divorce under Section13-B oftheHindu

Marriage Act, 1955, is accepted. There will be a decree of

divorce on the basis of the joint petition filed by the

parties before theSecond Additional District Judge,
Chhindwara, under Section 13-B of the Hindu Marriage Act,

1955,inrespect of themarriagesolemnized between the

partieson22ndJune,1985,accordingtoHindu rites and

customs and the said marriage shall stand dissolved from the

date of this judgment.

23. There will be no order as to costs.

(ALTAMAS KABIR)(CYRIAC JOSEPH)
New Delhi
Dated: 01.09.2009.

One thought on “6 Months waiver in divorce with SC only

  1. I heard there is a review order of the Supreme Court that is about to come that may nullify its recent judgment that only the Supreme Court can waive the six month period before the second motion.

    Does anyone have more information on this?

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