IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on : 26th October, 2018
Date of decision : October, 31st, 2018
MAT APP. 93/2007
TINA GUPTA ….. Appellant
Through Mr. Laltaksh Joshi, Adv.
versus
VISHAL GUPTA ….. Respondent
Through: Mr. S. Mukerjee, Adv. with Mr.
Yogendra Kumar, Adv. for LR
of respondent.
CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT

ANU MALHOTRA, J.

1. The appellant i.e. Tina Gupta vide the present appeal under
Section 28 of the Hindu Marriage Act, 1955 as amended has assailed
the impugned judgment and decree dated 06.10.2007 of the learned
Additional District Judge, Delhi in HMA No. 801/06, whereby the
marriage between the appellant and the respondent to the said divorce
petition HMA No. 801/06 also arrayed as the respondent to the present
appeal (since deceased) and who is now represented by his father was
dissolved by a decree of divorce through mutual consent, it having
been observed by the learned Trial Court that both the petitioners of
the said petition i.e. Tina Gupta and Vishal Gupta could not live
together as they have reached to a point of no return and their

MAT APP. 93/2007 Page 1 of 21
marriage had broken down irretrievably.

2. The challenge to the said impugned order dated 06.10.2007
seeks the setting aside of the said judgment and decree submitting to
the effect that the said decree of divorce is a nullity in the eyes of law
and against the cannons of acceptability and that divorce cannot be
fastened on a litigant unilaterally and arbitrarily in the event of the
litigant having not expressed his or her inclination to consent for a
mutual consent divorce.

3. Arguments were addressed on behalf of either side by their
learned counsel.

4. It is essential to observe that during the pendency of the present
matrimonial appeal, the respondent to the HMA No. 801/06 i.e. Vishal
Gupta expired and vide order dated 14.05.2008 in the present appeal,
it was held by this Court in view of the verdict of the Hon’ble
Supreme Court in Smt. Yallawan Vs. Smt. Shantavva, AIR 1997 SC
35, that the right to sue survived despite the demise of the spouse i.e.
husband of the appellant herein during the pendency of the appeal in
as much as the appeal had been filed seeking to setting aside the
decree of divorce. The observations of the Hon’ble Supreme Court
referred to in the order dated 14.05.2008 of this Court are reproduced
hereunder : –

“It must, therefore, be held that after a decree of divorce
is obtained by the petitioning husband against his wife
she has right to file an appeal and such appeal does not
abate on account of the death of the respondent husband
whether such death takes place prior to the filing of
appeal or pending the appeal. Similarly, if an ex parte
decree of divorce is obtained against the wife and

MAT APP. 93/2007 Page 2 of 21
thereafter if the husband dies, the aggrieved wife can
maintain an application under Order IX Rule 13 C.P.C.,
even though the husband might have died prior to the
moving of that application or during the pendency of
such application. In all such cases other legal heirs of the
deceased husband can be brought on record as
opponents or respondents in such proceedings by the
aggrieved spouse who wants such decree to be set aside
and when the other heirs of the deceased husband would
naturally be interested in getting such decree confirm
either in appeal or under Order IX Rule 13 C.P.C. The
second alternative contention as canvassed by the learned
counsel for the appellant, therefore stands rejected.”

5. The amended memo of parties was filed whereby Sh. S.P.
Gupta and Smt. Kiran Gupta, the parents of the deceased Vishal Gupta
were arrayed. During the course of hearing Smt. Kiran Gupta is also
reported to have expired. Though it was sought to be urged on behalf
of the respondent placing reliance on the observations in para 10 of the
verdict in Yallawwa Vs. Shantavva AIR 1997 SC 35, which read to
the effect : –

“Now remains the question as to whether the proceedings
for divorce as restored by the High Court by its impugned
order and required to be proceeded further or the curtain
must be dropped on the said proceedings. As the ex parte
decree is found to be rightly set aside by the High Court,
the marriage petition would automatically stand restored
on the file of the learned Trial Judge at the stage prior to
that at which they stood when the proceedings got
intercepted by the ex parte decree. Once that happens it
becomes obvious that the original petitioner seeking
decree of divorce against the wife being no longer
available to pursue the proceedings now, the proceedings
will certainly assume the character of a personal cause of

MAT APP. 93/2007 Page 3 of 21
action for the deceased husband and there being no
decree culminating into any crystalized rights and
obligations of either spouse, the said proceedings would
obviously stand abated on the ground that right to sue
would not survive for the other heirs of the deceased
husband to get any decree of divorce against the wife as
the marriage tie has already stood dissolved by the death
of the husband. No action, therefore, survives for the
court to snap such a non-existing tie, otherwise it would
be like trying to slay the slain. At this stage there remains
no marriage to be dissolved by any decree of divorce.
Consequently, now the ex parte decree is set aside, no
useful purpose will be served by directing the Trial Court
to proceed with the Hindu marriage petition by restoring
it to its file. The Hindu Marriage Petition No. 25 of 1989
moved by Shri Basappa, the husband of the respondent,
on the file of the Court of Civil Judge, Gadag will be
treated to have abated and shall stand disposed of as
infructuous. The appeal is disposed of accordingly. In the
facts and circumstances of the case, there will be no
order as to costs.”

to contend that the right to sue did not survive against the legal
representatives of the deceased respondent in as much as crystallized
rights had culminated vide the impugned order dated 06.10.2007 of
the learned Trial Court. The observations in para 10 of the impugned
verdict relied upon on behalf of the respondent do not help the
respondent in any manner for the same relates to the demise of the
petitioner thereof who had sought the ex-parte decree of divorce
against his wife and the petitioner thereafter after the setting aside of
the ex-parte decree having died, no cause of action survived which is
not so in the instant case.

6. In the circumstances, it is held that the right to sue survives in

MAT APP. 93/2007 Page 4 of 21
the instant case in favour of the petitioner and against the legal
representatives of the deceased respondent and the appeal seeking the
setting aside of the impugned judgment dated 06.10.2007 of the
learned Trial Court is thus held to be maintainable in the
circumstances despite demise of the original respondent.

7. The impugned order itself reflects that the petitioner i.e. the
husband Vishal Gupta had filed HMA No. 500/05 on 20.05.2005
under Section 13(1) (ia) of the Hindu Marriage Act, 1955 as amended
for dissolution of the marriage against the respondent thereto who was
served with the notice of the same and was contesting the same and
during the pendency of the case both sides negotiated for a
compromise especially on 19.09.2006, 26.10.2006, 08.11.2006,
23.11.2006, 24.11.2006 and 25.11.2006 and on 26.10.2006 the parties
to the petition submitted that they had arrived at a settlement and
would be parting their ways by filing the petition for divorce by
mutual consent. The impugned order also reflects that it had been
agreed that the petitioner i.e. the original respondent to the present
appeal would be paying Rs.15 lakhs as alimony and that on
25.11.2006 both the sides had submitted that they had compromised
all their disputes and had decided to part their ways amicably and
would take a divorce by mutual consent and were seeking the grant of
a decree of divorce. Thus their statements were recorded and they
were identified by their counsel and furthermore both the petitioner
and the respondent stated that they had parted amicably and the
respondent to those proceedings i.e. the present appellant had also
requested for withdrawal of her application under Section 24 of the

MAT APP. 93/2007 Page 5 of 21
Hindu Marriage Act, 1955 as amended.

8. The appellant herein i.e. the petitioner no. 1 in HMA No.
801/06 seeks the setting aside of the impugned order submitting to the
effect that the Trial Court erroneously did not take into account the
factum that the petitioner herein had withdrawn her consent to the
grant of the decree of mutual consent and that she having so refused to
participate in the same cannot now be compelled to accept a divorce
through mutual consent in as much as the mutuality to the consent
does not exist.

9. The Trial Court vide the impugned order dated 06.10.2007 in
view of the verdict of this Court in Anita Sharma and another Vs. Nil
119 (2005) DLT 483 observed to the effect that the period of six
months from the date of filing of the petition under Section 13B(1) of
the Hindu Marriage Act, 1955 as amended from disposal of the
petition HMA No. 800/06 on 25.11.2006, was waived. The Trial Court
after waiver of the statutory period of six months from the date of the
institution of the petition under Section 13B(1) of the Hindu Marriage
Act, 1955 as amended till the date of the institution of the petition
under Section 13B(2) of the Hindu Marriage Act, 1955 as amended
i.e. the HMA No. 801/06 further held that the appellant herein after
due identification of counsel on 04.08.2007 had made a statement in
the Court that in case the petitioner no. 2 was willing to pay a sum of
Rs.28 lakhs, she was ready for a divorce and that on 01.10.2007 she
submitted before the Court that if an amount of Rs.36 lakhs was paid
to her she will be willing for a divorce although she had made a
statement in the Court on 04.08.2007 that an amount of Rs.28 lakhs be

MAT APP. 93/2007 Page 6 of 21
paid to her and she would be ready for a divorce and it was observed
by the Trial Court vide the impugned order that the petitioner no. 2 i.e.
the respondent in the proceedings that the petitioner no. 2 had paid
Rs.8 lakhs to the petitioner no. 1 at the time of the recording of the
statements in the first motion petition on 06.10.2007 and had placed
on record four drafts for a total amount of Rs.8 lakhs submitting that
the same may be given to the petitioner no. 1. The Trial Court vide the
impugned order thus held that there was no force, threat, pressure,
coercion and undue influence exercised against the appellant herein
and she had taken up a false plea in order to extort more money from
the petitioner no. 2. It was also observed by the Trial Court to the
effect : –

“It is clear from the record that there is no force, fraud,
threat, pressure, coercion or undue influence exercised
against petitioner No.1 and she is coming up with a false
plea of the same in order to extort more money from
petitioner No. 2. In the first motion petition as well in the
order sheet dated 26.10.06 of the main case bearing
HMA No. 500 of 05, the total amount to be paid by Vishal
Gupta to Tina Gupta is stated to be Rs. 15 lacs but in the
statement dated 25.11.06 recorded in the first motion
petition the amount has been mentioned as Rs. 16 lacs. In
the Second Motion Petition amount is again stated to be
Rs. 15 lacs while the amount of Rs. 16 lacs is being
mentioned verbally and petitioner number 2 has stated
that he would be giving the same vide drafts.
These facts indicate that initially an amount of Rs. 15
lacs has been settled between the parties which was to be
given by petitioner no.2 to petitioner no.1 but during her
statement in the first motion petition she has taken an
extra Rs.1 lac. This settlement also appears to have made
voluntarily between the parties as petitioner no.2 has

MAT APP. 93/2007 Page 7 of 21
today placed on record Rs. 8 lacs vide four drafts to be
given to petitioner no. 1 in terms of settlement arrived
between them.

The petitioner number 1 has not shown any thing on the
record, whether a complaint against petitioner number 1,
and FIR, a letter, or even a complaint against petitioner 2
or her previous counsel to substantiate her averments
that she has been defrauded by petitioner number 2 in
any manner. She is simply enjoying the benefits of Rs.8
lacs which was given to her in cash at the time of
recording of the statement in the first motion petition
and-has not returned the same to petitioner number as is
clear from the order sheet dated 23.07.2007.
Petitioner number 1 is apparently not telling the truth
when she says that she has signed the petitions without
reading them as besides her signing the petitions, she has
also signed on the affidavits, the application for waiver of
the stipulated period as well as the joint statement in the
first motion petition. It is pertinent to observe that the
joint statement in the first motion petition was recorded
before the Court after making all the relevant querries
including about force, fraud, threat etc. Petitioner
number 1 in fact has also deposed in the joint statement
in the first motion petition that the consent has not been
obtained by threat, pressure, coercion, force, fraud and
undue influence. It is clear that the consent is without
any threat, pressure, coercion, force, fraud and undue
influence and is voluntary.

The greed of petitioner No. 1 is also very clearly seen
from her statement dated 04.08.2007 wherein she has
deposed that she is ready for a divorce if petitioner no.2
pays a total of Rs. 28 lacs to her. The greed of petitioner
no.1 also is seen to be increased as on 01.10.2007 she has
made a statement that she is ready for a divorce if a total
amount of Rs. 36 lacs is paid to her.

This is a very specific case in which ingredients of force
and fraud seems to be handmaid of petitioner no.1 and
not petitioner no. 2. She is attempting to unilaterally

MAT APP. 93/2007 Page 8 of 21
withdraw her consent on the basis of malafide, baseless
and unjust averments which indicate her chicanery and
duplicity as petitioner no.2 has been reduced to a helpless
victim. Petitioner number 1 is already enjoying the
benefits by having taken Rs. 8 lac in cash at the time of
recording of statement in the first motion petition and.
even not cared to return the same to petitioner no.2
which also indicate, her malafide intention.
Infact on 23.03.2007 petitioner no.1 has submitted that
she cannot return, Rs. 8 lac which she has taken in the
first motion petition. She has also befooled the petitioner
number 2 to make a statement in HMA petition number
500 of 2005 under section 13 (1) (ia) HMA for its
disposal as compromised and now petitioner, number 2
cannot even continue with that case.

This case is a glaring example of how one spouse i.e. the
wife is exploiting the situation to her benefit and
harassing the other spouse i.e. the husband in. order to
extort more and more money from him.

This is a fit case in which succour and relief should be
provided to the husband who otherwise would be left
ruing the misfortune befallen on him.

In these circumstances, petitioner no.1 cannot be
permitted to unilaterally withdraw her consent as there is
apparently no force, fraud, coercion, threat or undue
influence used against her.

The application of petitioner no. 1 for leave to withdraw
under section 151 is hereby dismissed.

Today petitioner number 1 has not even cared to put in
appearance which also shows the scant regard which she
has for the Court and under these circumstances even the
joint statement of both the petitioners is not required. The
petition is being disposed off on the basis of the material
on record. Petitioner no.1 is at liberty to collect the four
draft of Rs. 8 lac which have been filed today by
petitioner no.2.”

and thus the application of the petitioner no. 1 i.e. the appellant herein

MAT APP. 93/2007 Page 9 of 21
in HMA No. 801/2006 seeking leave to withdraw her consent was
dismissed and it was observed to the effect that she having not cared
to put in appearance before the learned Trial Court even the joint
statement of both the petitioners was not required and the petition was
disposed of on the basis of the material on record with it having been
observed further to the effect that the petitioner no. 1 i.e. the appellant
herein was at liberty to collect the 4 drafts of Rs.8 lakhs which had
been filed by the respondent no. 2 i.e. the present petitioner
represented by his LR i.e. his father.

10. It was observed by the Trial Court to the effect that the marriage
of the parties to the petition being Hindu by religion was solemnized
on 28.02.2001 at Amritsar according to Hindu rites and ceremonies
and that the matrimonial home of both the parties being in Delhi and
that they having been living separately since 05.06.2004 due to the
differences in their temperaments and attitude and having not resumed
cohabitation, there was no possibility of their living together as
husband and wife and the marriage had broken and that they had
settled their claims and disputes as per terms and conditions
mentioned and there was no collusion between the parties and that the
petition was filed by the petitioner under Section 13B(1) of the Hindu
Marriage Act, 1955 as amended having been allowed on 25.10.2006
and they have undertaken to abide by the terms and conditions thereof
the petition under Section 13B(2) of the Hindu Marriage Act, 1955 as
amended was allowed.

11. It has been submitted on behalf of the appellant that the
appellant having withdrawn her consent to the grant of decree of

MAT APP. 93/2007 Page 10 of 21
divorce by mutual consent vide her application under Section 151 of
the CPC dated 12.03.2007, the decree of divorce through mutual
consent under section 13B(2) of the Hindu Marriage Act, 1955 as
amended could not have been granted in relation to which it was
observed on behalf of the LR of the deceased respondent that in view
of the statement dated 04.08.2007 of the appellant before the Trial
Court wherein she has stated to the effect : –

“I have already received Rs.8 lacs from the petitioner no.
2 at the time of recording of the statement in the fist
motion petition. I have moved an application in the
second motion petition for withdrawal of consent as
settlement had been effected between us that the
petitioner no. 2 would be returning my istridhan value of
rupees i.e. a sum of Rs.20 lacs and Rs.8 lacs totalling of
Rs.28 lacs, which is not paying for this reason I may be
permitted to withdraw my consent. In case petitioner no.
2 is willing to pay Rs.20 lacs for istridhan and Rs.8 lacs
totalling of Rs.28 lacs, I am still ready for divorce.”

wherein it was thus stated that she be permitted to withdraw her
consent and in the event of the petitioner no. 2 i.e. the husband (since
deceased) being willing to pay Rs.28 lakhs in total of which she had
received Rs.8 lakhs, she was still ready for the divorce, it has been
submitted on behalf of the respondent that the appellant having not
stated that she wanted to continue with the marriage but had added the
condition of the additional sum to be paid, could not take advantage of
the same and that she having stated that she was ready for divorce
after her terms were accepted, the consent for divorce per se had not
been withdrawn.

12. It is essential to observe that vide her affidavit dated 01.05.2007

MAT APP. 93/2007 Page 11 of 21
placed on the record of the TCR in support of her application seeking
withdrawal of consent to the petition under Section 13B(2) of the
Hindu Marriage Act, 1955 as amended, it was stated by the appellant
herein :-

“3. That I have moved an application under Section
151 CPC for leave to withdraw the said petition as the
petitioner no. 2 has miserably failed to remain alive to his
commitments which were conceded and concurred
between the parties and is guilty of having flouted the
mutually conceded terms.

4. That I state that I have a right of co-ownership in
the property bearing No.19, Bunglow Road, Roop Nagar,
Delhi-110 0 07 and I have equally share in M/s. Standard
Enamel Works Pvt. Ltd., 35, Rama Road, Near Moti
Nagar, New Delhi-110 015.

5. That I am taking steps to claim and assert my
rights in the said property as well as in the business
establishment. I have already stated times and again that
huge amounts were spent and incurred by my family in
my marriage and my stridhan is being unlawfully
retained by my in-laws who are guilty of having
committed criminal breach of trust.

6. That taking undue advantage of my being a
homely innocent family girl, certain papers without
permitting me to read the contents thereof were also got
signed from me and I apprehend that some foul game
may not be played by the petitioner No. 2 as, well as his
other associates since certain papers in blank were also
obtained from me under misrepresentation and coercion.
Similarly for signing the mutual consent petition for
divorce, I was allured, a fraud was practised and on
certain solemn assurances I opted to’ sign which have
thereafter turned false and bogus.

7. That I am presently sick and unable to move under
these circumstances, I am not in a position to attend the
Court. As such the present affidavit be taken on record in

MAT APP. 93/2007 Page 12 of 21
support of my contention to withdraw from the
proceedings and to dismiss the petition.”

13. On a consideration of the submissions that have been made on
behalf of either side and on a perusal of the Trial Court Record and the
factum of the application having been filed by the appellant herein
seeking withdrawal of her consent to the grant of a decree of divorce
through mutual consent under Section 13B (2) of the Hindu Marriage
Act, 1955 as amended and as it is settled law as laid down vide the
verdict of the Hon’ble Division Bench in reference in REFERENCE
IN CONT.CAS(C) 772/2013, 347/2013, 484/2014, 584/2014,
648/2014, 48/2016, 483/2016, 484/2016, 1147/2016, 1116/2016,
1251/2016, 78/2017, 132/2017, 197/2017, 204/2017, 216/2017 and
270/2017 dated 15.05.2018 that to the question (B) to the reference,
which reads to the effect : –

“Question (B) Whether by undertaking before a Court to
file a second motion under Section 13B(2) of the Act,
1955 at Section 13B(1) stage or by giving an undertaking
to a Court to that effect in a separate court proceeding, a
party waives its right to rethink/renege under 13B(2) of
the Act, 1955? If yes, whether such right can be waived
by a party under Section 13B(2) of the Act, 1955?”

which reference was answered as

“Answer:(a) The answer to the first limb of Question (B)
is no. Notwithstanding any undertaking given by a party
before a court to file a Second motion under Section
13B(2) or at the Section 13B(1) stage or in any separate
court proceedings, its right to rethink/renege under
Section 13B(2) of the Act, cannot be waived for the
reason that such a waiver is proscribed by the Statute that

MAT APP. 93/2007 Page 13 of 21
keeps a window open for the parties to withdraw their
consent at any stage till the decree of divorce is finally
granted. The element of mutual consent remains the
leitmotif of the said provision and its existence is a salient
and recurring theme that like warp and weft, weaves its
way through the entire process set into motion at the
Section 13B(1) stage, followed by the Section 13B(2)
stage, till the very end when a decree of divorce is
granted. The right of withdrawal of consent in the above
proceedings can be exercised at any stage and exercise of
such a discretion cannot be treated as being opposed to
public policy. Any other interpretation given to the
aforesaid provision would negate the underlying aim,
object and intent of the said provision. Once a party
decides to have a second thought and on reflection, backs
off, the concerned court cannot compel the defaulting
party to give its consent on the basis of an earlier
settlement/undertaking. (b) In view of the answer given to
the first limb of Question (B), the second limb of the said
question needs no answer”

(emphasis supplied),

it is apparent that the element of mutual consent having not continued
at the stage of proceedings under Section 13B(2) of the Hindu
Marriage Act, 1955 as amended till the date when the decree of
divorce was granted, no such decree of divorce under Section 13B(2)
of the Hindu Marriage Act, 1955 as amended, as granted vide the
impugned order, could have been granted.

14. During the course of the submissions that have been made on
behalf of the appellant it was contended that even the basic parameters
under Section 13B (2) of the Hindu Marriage Act, 1955 as amended
were not adhered to in as much as the impugned order itself reflects
that the appellant was not even present on the date when the decree of

MAT APP. 93/2007 Page 14 of 21
divorce was granted and had thus not even been heard. It is essential to
observe that even in the verdict of the Hon’ble Supreme Court in
Hitesh Bhatnagar Vs. Deepa Bhatnagar (2011) 5 SCC 234 it is
observed to the effect : –

“13) The appellant contends that the Additional District
Judge, Gurgaon, was bound to grant divorce if the
consent was not withdrawn within a period of 18 months
in view of the language employed in Section 13B(2) of
the Act. We find no merit in the submission made by the
appellant in the light of the law laid down by this Court
in Sureshta Devi’s case (supra).

14) The language employed in Section 13B(2) of the Act
is clear. The Court is bound to pass a decree of divorce
declaring the marriage of the parties before it to be
dissolved with effect from the date of the decree, if the
following conditions are met:

a. A second motion of both the parties is made not before
6 months from the date of filing of the petition as
required under sub- section (1) and not later than 18
months;

b. After hearing the parties and making such inquiry as it
thinks fit, the Court is satisfied that the averments in the
petition are true; and c. The petition is not withdrawn by
either party at any time before passing the decree;

15) In other words, if the second motion is not made
within the period of 18 months, then the Court is not
bound to pass a decree of divorce by mutual consent.
Besides, from the language of the Section, as well as the
settled law, it is clear that one of the parties may
withdraw their consent at any time before the passing of
the decree. The most important requirement for a grant
of a divorce by mutual consent is free consent of both the

MAT APP. 93/2007 Page 15 of 21
parties. In other words, unless there is a complete
agreement between husband and wife for the dissolution
of the marriage and unless the Court is completely
satisfied, it cannot grant a decree for divorce by mutual
consent. Otherwise, in our view, the expression `divorce
by mutual consent’ would be otiose.”

15. The verdict of the Hon’ble Supreme Court in Smruti Pahariya
Vs. Sanjay Pahariya (2009) 13 SCC 38 lays down to the effect : –

“42. We are of the view that it is only on the continued
mutual consent of the parties that a decree for divorce
under Section 13-B 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 fact situation, discussed above.

43. 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 13-B. So in cases under Section
13-B, mutual consent of the parties is a jurisdictional
fact. The court while passing its decree under Section 13-
B 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.”

16. It has been laid down by the Hon’ble Supreme Court in
Sureshta Devi Vs. Om Prakash AIR 1992 Supreme Court 1904 to the
effect : –

MAT APP. 93/2007 Page 16 of 21

“10. Under sub-section (2) the parties are required to
make a joint motion not earlier than six months after the
date of presentation of the petition and not later than 18
months after the said date. This motion enables the Court
to proceed with the case in order to satisfy itself about the
genuineness of the averments in the petition and also to
find out whether the consent was not obtained by force,
fraud or undue influence. The Court may make such
inquiry as it thinks fit including the hearing or
examination of the parties for the purpose of satisfying
itself whether the averments in the petition are true. If
the Court is satisfied that the consent of parties was not
obtained by force, fraud or undue influence and they
have mutually agreed that the marriage should be
dissolved, it must pass a decree of divorce.

11. The question with which we are concerned is
whether it is open to one of the parties at any time till the
decree of divorce is passed to withdraw the consent given
to the petition. The need for a detailed study on the
question has arisen because of the fact that the High
Courts do not speak with one voice on this aspect. The
Bombay High Court in Jayashree Ramesh Londhe v.
Ramesh Bhikaji Londhe, AIR 1984 Bom. 302, has
expressed the view that the crucial time for the consent
for divorce under Section 13-Bwas the time when the
petition was filed. If the consent was voluntarily given it
would not be possible for any party to nullify the petition
by withdrawing the consent. The court has drawn support
to this conclusion from the principle underlying Order
XXIII Rule 1 of the Code of Civil Procedure which
provides that if a suit is filed jointly by one or more
plaintiffs, such a suit or a part of a claim cannot be
abandoned or withdrawn by one of the plaintiffs or one
of the parties to the suit. The High Court of Delhi
adopted similar line of reasoning in Smt. Chander Kanta
v. Hans Kumar and Anr., AIR 1989 Delhi 73 and the
Madhya Pradesh High Court in Meena Dutta v. Anirudh
Dutta, [1984] 11 DMC 388 also took a similar view.

MAT APP. 93/2007 Page 17 of 21

12. But the Kerala High Court in K.L Mohanan v.
Jeejabai, AIR 1988 Kerala 28 and the Punjab and
Haryana High Court in Harcharan Kaur v. Nachhattar
Singh, AIR 1988 Punjab Haryana 27 and Rajasthan
High Court in Santosh Kumari v. Virendra Kumar, AIR
1986 Rajasthan 128 have taken a contrary view. It has
been inter alia, held that it is open to one of the spouses
to withdraw the consent given to the petition at any time
before the Court passes a decree for divorce. The
satisfaction of the Court after holding an inquiry about
the genuineness of the consent, necessarily contemplates
an opportunity for either of the spouses to withdraw the
consent. The Kerala High Court in particular has ruled
out the application of analogy under Order XXIII Rule I
of the Code of Civil Procedure since it is dissimilar to the
situation arising under Section 13-B of the Act.

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)

MAT APP. 93/2007 Page 18 of 21
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 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
mutualitly and consent for divorce. Mutual consent to the
divorce is a sine qua non for passing a decree for divorce
underSection 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”. [See (i) Halsbury Laws
of England, Fourth Edition Vol. 13 para 645; (ii) Rayden
on Divorce, 12th Ed. Vol. 1 p. 291 and (iii) Beales v.
Beales, [ 1972] 2 All E. R. 667 at 674 : (1972) 2 WLR

972).

15. In our view, the interpretation given to the section
by the High Courts of Kerala, Punjab Haryana and
Rajasthan in the aforesaid decisions appears to be correct
and we affirm that view. The decisions of the High
Courts of Bombay, Delhi and Madhya Pradesh (supra)

MAT APP. 93/2007 Page 19 of 21
cannot be said to have laid down the law correctly and
they stand overruled.

16. In the result, we allow the appeal and set aside the
decree for dissolution of the marriage. In the
circumstances of the case, however, we make on order as
to costs.”

which makes it apparent that in the absence of the continued mutual
consent a decree of divorce under Section 13 B(2) of the Hindu
Marriage Act, 1955 as amended cannot be granted as laid down in
Smruti Pahariya Vs. Sanjay Pahariya and from the absence of one of
the parties before the Trial Court, the presumption of consent for
divorce cannot be attributed to that party as consent needs to continue
till the date of the decree of divorce under Section 13B (2) of the
Hindu Marriage Act, 1955 as amended and the Court has the statutory
obligation to hear the parties to ascertain their consent which was
clearly not done in the instant case, the appellant not even being
present on the date 06.10.2007 i.e. the date of the decree of divorce
granted through mutual consent.

17. In the circumstances, the impugned order which granted the
decree of divorce through mutual consent dated 06.10.2007 of the
learned Additional District Judge, Delhi in HMA No. 801/06 is set
aside.

18. The amount of Rs.8 lakhs deposited during the course of the
proceedings under Section 13(B) 2 of the Hindu Marriage Act, 1955
as amended vide demand drafts details of which are : –

(1) dated 05.10.2007 for a sum of Rs.6,10,000/- bearing
no. 918220 drawn on Syndicate Bank, Kamla Nagar,

MAT APP. 93/2007 Page 20 of 21
Delhi – 110007 in favour of Tina.

(2) dated 03.10.2007 for a sum of Rs.1,00,000/- bearing
no. 342546 drawn on Centurion Bank of Punjab Limited,
Kamla Nagar, New Delhi in favour of Tina.

(3) dated 03.10.2007 for a sum of Rs.50,000/- bearing no.
342547 drawn on Centurion Bank of Punjab Limited,
Kamla Nagar, New Delhi in favour of Tina.

(4) dated 03.10.2007 for a sum of Rs.40,000/- bearing no.
342548 drawn on Centurion Bank of Punjab Limited,
Kamla Nagar, New Delhi in favour of Tina.

on 06.10.2007 and directed to be converted into an FDR in the name
of the appellant initially for a period of one year so that an interest
amount may be ensured to the benefit of the successful party vide
order dated 29.04.2011 in CM no. 1162/2010 of this Court, which
have been converted into FDRs for the payment of interest thereon
w.e.f. 29.04.2011 as observed vide the proceedings dated 27.07.2018
in CONT. CAS (C) No. 492/2018 with interest accrued thereon are
directed to be released to the legal representatives of the respondent
i.e. to Sh. S.P. Gupta, father of the deceased respondent by the banks
concerned.

The MAT APP. 93/2007 is disposed of accordingly.

ANU MALHOTRA, J
st
OCTOBER 31 , 2018/mk

MAT APP. 93/2007 Page 21 of 21