Anil Kumar Jain Vs. Maya Jain on 1 September, 2009
Bench: Altamas Kabir, Cyriac Joseph
Held: 1.1. This Court in Sureshta Devi* held that the consent given by the parties to the filing of a petition u/s. 13-B of the Hindu Marriage Act, 1955 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 u/s. 13-B would not survive and would have to be dismissed. [Para 8] [99-F-G]
*Smt. Sureshta Devi vs. Om Prakash (1991) 2 SCC 25 SCR, relied on
1.2. Subsequently, however, in Ashok Hurra’s** case, basing its decision on the doctrine of irretrievable break-down of marriage, the Court was of the view that no useful purpose would be served 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. The decision in Ashok Hurra’s case to invoke the power under Article 142 of the Constitution of India was, thereafter, followed in several cases based upon the doctrine of irretrievable break-down of marriage. [Para 9 and 10] [99-G-H; 100-A-B; E]
**Ashok Hurra v. Rupa Bipin Zaveri 1997 (4) SCC 226, referred to
1.3. An analysis of judgments of this Court throws up two propositions. The first is that although irretrievable break-down of marriage is not one of the grounds indicated u/s. 13 or 13-B of the Act, 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 of six months stipulated in s. 13-B of the 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 order before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in ss. 13 and 13-B of the Hindu Marriage Act, 1955. [Para 17] [103-C-F]
Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon (Capt.) & Anr. (1993) 2 SCC 6; Sandhya M. Khandelwal vs. Manoj K. Khandelwal (1998) 8 SCC 369; Anita Sabharwal vs. Anil Sabharwal (1997) 1 SCC 490; Kiran vs. Sharad Dutt (2000) 10 SCC 243; Anjana Kishore vs. Puneet Kishore (2002) 10 SCC 194; Swati Verma (Smt.) vs. Rajan Verma & Ors. (2004) 1 SCC 123; Jimmy Sudarshan Purohit vs. Sudarshan Sharad Purohit (2005) 13 SCC 410 and Sanghamitra Ghosh vs. Kajal Kumar Ghose (2007) 2 SCC 220, referred to
1.4. 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 u/s. 13 of the Act, into one u/s. 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 142 of the Constitution, can pass orders to do complete justice to the parties. [Para 18] [103-G-H; 104-A-B]
1.5. The various decisions 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 the statutes have to be given effect to. The law as explained in Sureshta Devi’s case still holds good, though with certain variations as far as Supreme Court is concerned and that too in the light of Article 142 of the Constitution. [Para 19] [104-C-D]
1.6. 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’s remedy would lie in filing a separate petition before the Family Court u/s. 13 of the Act on the ground available but, in the instant case, there are certain admitted facts which attract the provisions of s.13-B. One of the grounds available u/s. 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. The parties are living separately for more than seven years. As a part of the agreement between the parties, the appellant had transferred valuable property rights 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. [Para 20] [104-E-H]
1.7. While, therefore, following the decision in Sureshta Devi’s case, the Court is of the view that this is a fit case where it may exercise the powers vested in it 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. [Para 21] [105-A-B]
1.8. The judgment of the High Court is set aside and the petition for grant of mutual divorce u/s. 13-B of the Act is accepted. There will be a decree of divorce on the basis of the joint petition filed by the parties before the trial court u/s. 13-B of the Act and the marriage shall stand dissolved from the date of this judgment. [Para 22] [105-C-D]
Case Law Reference:
1997(4) SCC 226 referred to para 4
1991(2) SCC 25 relied on para 8
1993(2) SCC 6 referred to para 9
1998 (8) SCC 369 referred to para 11
1997 (1) SCC 490 referred to para 12
2000 (10) SCC 243 referred to para 12
2002 (10) SCC 194 referred to para 13
2004(1) SCC 123 referred to para 14
2005(13) SCC 420 referred to para 14
2007 (2) SCC 220 referred to para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5952 of 2009.
From the Judgment & Order dated 21.3.2007 of the High Court of Madhya Pradesh at Jabalpur in First Appeal No.323 of 2005.
Rohit Arya, Nitin Gaur, Shankar Divate for the Appellant.
K. Sarada Devi for the Respondent.