If wife withdraws her consent can court grant divorce by mutual consent?

HIGH COURT OF ORISSA: CUTTACK.

MATA NO. 8 OF 2016

Sri Pravakar Muduli
Vs
Smt.Satyabhama Muduli
Date of Judgment :16.09.2016

PRESENT: SHRI JUSTICE VINOD PRASAD AND SHRI JUSTICE K.R. MOHAPATRA

Citation: AIR 2017(NOC) 4 Orissa

By the Court:- This Matrimonial Appeal has been filed questioning the legality and propriety of the order dated 15.10.2015 passed by the learned Judge, Family Court, Puri in C.P. No. 249 of 2014 rejecting an application filed by the parties under Section 13-B of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955’) for divorce by mutual consent.

2. The appellant (husband) instituted Civil Proceeding No. 175 of 2014 in the court of learned Judge, Family Court, Puri under Section 9 of the Act, 1955 against the respondent (wife) for a decree for restitution of 2 conjugal rights. During pendency of the said proceeding, both the parties to this appeal decided to dissolve the marriage mutually by a decree of divorce and accordingly, they filed a joint petition under Section 13-B of the Act, 1955, which was registered as C.P. No. 249 of 2014. In the said petition filed under Section 13-B of the Act, 1955, both the parties agreed that the appellant (husband) would pay a sum of Rs. 40,500/- to the respondent (wife) towards permanent alimony. On 17.8.2015, both the parties were examined as P.W. 1 and R.W. 1 respectively. In course of examination, the respondent (R.W.1) admitted that she had received a sum of Rs. 40,500/- from her husband (appellant). The matter was then posted to 22.8.2015 for argument and on that date, the argument was closed. The matter was then posted to 2.9.2015 for judgment. On 2.9.2015, the respondent (wife) filed an objection petition praying, inter alia, not to pronounce the judgment and to dismiss the petition under Section 13-B of the Act, 1955. In the said petition, the respondent (wife) had taken a stand on affidavit that at the instance of the gentlemen of the village, namely, Pramod Swain, Pravakar Jena, Surath Biswal and Ramesh Muduli, she had signed on revenue stamp and deposed before the learned Judge, Family Court, Puri that she had received the amount of Rs. 40,500/-, as the above named gentlemen assured to pay her the said amount later after reaching the village on the plea of possibility of theft of money, if paid in Court. Believing such assurances of the gentlemen, she had signed on the affidavit and deposed before the Court that she had received money from the appellant towards her permanent alimony but in fact she was never paid agreed amount nor 3 she has received the same and hence divorce by mutual consent should not be allowed.

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3. The appellant filed objection to the said petition denying the allegations made therein. The appellant re-affirmed that the respondent had signed on Ext. 1, i.e. the receipt, after receiving the amount of Rs. 40,500/-. Thus, he prayed to reject the wife’s application and allow the petition under Section 13-B of the Act, 1955.

4. The learned Judge, Family Court, Puri upon hearing the parties held that since there was no mutual consent between both the parties for divorce, the case filed under Section 13-B of the Act, 1955 for divorce by mutual consent would not be maintainable in the eye of law and dismissed the same vide impugned order dated 15.10.2015, which is assailed in this appeal.

5. Mr. Mishra, learned counsel for the appellant-husband submitted that after receiving the amount, the respondent-wife singed on the receipt (Ext.1) in presence of the gentlemen of the village. Further she got herself examined as R.W. 1 and deposed that she had received a sum of Rs.40.500/- from the appellant. After closure of argument, the C.P. was posted for judgment. Thus, she had no scope to file any petition at this stage, more particularly on the date of pronouncement of judgment, contrary to the materials on record as well as her own statement on oath. Learned Judge, Family Court had also no scope to entertain such a petition. Hence, the impugned judgment is not sustainable in the eyes of law.

6. Mr. Sahoo, learned counsel for the respondent, however, supported the impugned judgment and submitted that the respondent-wife 4 on good-faith, had singed on the receipt (Ext.1) and deposed in the Court. When the amount, as assured to her, was not paid, she had every right to bring the said fact to the notice of the learned Judge, Family Court. When such an objection was raised, learned Judge, Family Court, giving opportunity of hearing to the appellant-husband passed the impugned order. Hence, the impugned judgment need not be interfered with.

7. The power under Section 13-B of the Act, 1955 can only be exercised on consent of both the spouses. Sub-section (2) of Section 13-B of the Act, 1955 provides as follows:

“13-B. Divorce by mutual consent.-
(1) xxx xx xx
(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.”

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8. Thus, Section 13-B (2) of the Act, 1955 casts a duty on the Court to make an enquiry on the petition filed under Section 13-B of the Act, 1955 and record its satisfaction with regard to the averments made therein before passing a decree under the aforesaid provision.

9. In the case at hand, after recording of the evidence of the parties and on closure of argument, the matter was posted to 2.9.2015 for judgment. On the said date, the respondent (wife) filed a petition not to pronounce the judgment and to dismiss the petition filed under Section 5 13-B (1) of the Act, 1955 on the ground that she had not received the permanent alimony to the tune of Rs. 40,500/- as agreed upon. Learned Judge, Family Court, Puri accepting such petition made an enquiry and dismissed the petition under Section 13-B of the Act, 1955 holding the same to be not maintainable as both the parties did not give their consent to the said petition.

10. The Court has all rights during avizandum to make an enquiry and record its satisfaction on any petition or objection filed interregnum, by any of the parties to the proceeding before pronouncement of the judgment. The Hon’ble Supreme Court in the case of Smt. Sureshta Devi –v- Om Prakash, reported in AIR 1992 SC 1904, has categorically held at paragraph-13 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
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…… 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 the6
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.”

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Further, it has been held therein that the consent must continue to decree nisi and must be a valid consent when the case is heard. Thus, the consent given by the parties in the petition under Section 13-B of the Act, 1955 must remain alive till the judgment is pronounced. If, at any stage interregnum, any of the parties resiles from the consent so given, then a decree under Section 13-B of the Act, 1955 cannot be passed.

11. In the case at hand, the respondent (wife) resiled from her consent given in the petition under Section 13-B of the Act, 1955 on the ground that she had not received the permanent alimony as agreed upon between the parties. That, in our considered view, is relevant to be considered. Thus, we find no infirmity or illegality in the impugned order.

12. In view of the above, the Matrimonial Appeal merits no consideration and the same is accordingly dismissed, but in the circumstances, there shall be no order as to costs.

Vinod Prasad, J.
K.R. Mohapatra, J.

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