Decree for divorce by mutual consent when should not be granted?

18. The further question to be considered is whether once consent is given and is later withdrawn by one of the parties, whether the Court can enquire into the bona fides or otherwise of the withdrawal of the consent. By providing that the enquiry under Section 13B(2) shall be only if consent is not withdrawn, the statute specifically recognizes the right of the parties to withdraw the consent even at the stage of the enquiry contemplated under Section 13B(2). That right available to the parties is an unqualified right and for any reason whatsoever, if the parties or one of them, choose to withdraw their consent, such withdrawal of consent is in exercise of the right available under Section 13B(2). If that be so, it is not for the Court to probe into the bona fides or reasonableness of withdrawal of consent and once consent is withdrawn, the only option available to the Court is to close the matter at that stage. If that be the legal position, we are unable to find any fault on the part of the Family Court in having dismissed the petition on the ground of non-compliance of the requirement of Section 13B(2) of the Act.Citation: ILR2014(1)Kerala553, 2014 (1) KHC 83,AIR 2014 kerala 44

IN THE HIGH COURT OF KERALA

Mat. A. No. 174 of 2013

Decided On: 04.12.2013

Appellants: Rajesh R. Nair
Vs.
Respondent: Meera Babu

Hon'ble Judges/Coram:Antony Dominic and P.D. Rajan, JJ.

1. The appellant and the respondent are husband and wife and their marriage was on 24/11/2005. In the wed-lock they have a male child. Subsequently, due to incompatibilities, the couples separated on 24/10/2009 and are living separately since then. While so, the respondent wife filed GO (P) No. 238 of 2010 before the Family Court, Thiruvananthapuram for custody of the child. She also filed OP No. 813 of 2010 for recovery of gold ornaments and for maintenance. During the pendency of the above two cases, the appellant husband filed OP No. 217 of 2011 for restitution of conjugal rights.

2. The disputes between the parties were referred for mediation and on the intervention of the mediators of Thiruvananthapuram Mediation Centre, Annexure-A2 compromise was arrived at. In Annexure-A2 mediation agreement, the husband agreed to pay maintenance of Rs. 12,000/- per month to the child, the wife respondent agreed to forgo her claims the husband for maintenance and the husband had agreed to pay an amount of Rs. 1,50,000/- to the wife. There were also provisions regulating the custody of the child and a car and the ornaments of the wife were also agreed to return to her. Finally, the agreement also provided that the parties decided to seek divorce on mutual consent by filing an appropriate petition.

3. The compromise was filed before the Family Court on 30/04/2011 and on that date itself, OP No. 652 of 2011 under Section 13B of the Hindu Marriage Act was also filed for divorce on mutual consent. On the filing of the case, the case was posted for enquiry after a period of six months. In the meanwhile, in terms of Annexure-A2 agreement between the parties, Annexure-A1 joint petition was moved and orders were accordingly passed disposing of GO (P) Nos. 238 of 2010, OP No. 813 of 2010 and OP No. 217 of 2011. Copies of these orders are produced as Annexures A3, A4 and A5 respectively.

4. When OP No. 652 of 2011 filed under Section 13B of the Hindu Marriage Act came up for consideration after the six months period, the wife remained absent on 16/12/2011, 29/12/2011 and on 19/03/2012, when both were absent and as a result, the petition was dismissed for default. The appellant challenged this order of the Family Court before this Court in OP (FC) No. 3011 of 2012. By Annexure A7 judgment rendered on 17/09/2012, the order passed by the Family Court was set aside and the Court was directed to dispose of the matter on merits. The parties were also ordered to appear before the Family Court on 04/10/2012.

5. On 04/10/2012, the respondent wife appeared before the Family Court and filed Annexure-A8 affidavit withdrawing her consent for divorce. According to her, she signed Annexure-A2 compromise due to compulsion of the circumstances as she urgently required substantial amounts to continue her treatment. She stated that when she demanded the appellant to return her money and ornaments, he insisted that she should agree for divorce on mutual consent and that therefore her consent was obtained by force and undue influence. Thereupon, she was cross-examined by the counsel for the appellant and her evidence is produced along with the appeal memorandum as Annexure-A8.

6. The matter was finally heard and the Family Court by Annexure-A9 order dismissed the original petition, holding that since the respondent had withdrawn her consent, which is a condition precedent under Section 13B(2) of the Hindu Marriage Act, for passing a decree of divorce on mutual consent, the petition was liable to be dismissed. The Family Court also relied on Section 23(1)(bb) of the Act. It is this order, which is under challenge in this appeal.

7. We heard the learned counsel for the appellant and also the learned counsel appearing for the respondent.

8. The first contention raised by the learned counsel for the appellant was that the respondent having given her consent for filing the petition under Section 13B of the Hindu Marriage Act, is not entitled to withdraw her consent unilaterally and that too after enjoying the advantages of the beneficial terms of Annexure-A2 compromise. She therefore stated that the Family Court was entitled to examine the bona fides of the withdrawal and on such enquiry, if the bona fides of the withdrawal are found against her, according to the learned counsel, the Court is entitled to pass a decree under Section13B of the Hindu Marriage Act On the other hand the counsel appearing for the respondent wife submitted that Section 13B of the Hindu Marriage Act requires consent of the parties not only at the stage of presentation of the petition but also at the stage of enquiry after the expiry of the cooling period. According to him the Act entitles the parties to review their earlier decision and that if by exercise of that right, the consent is withdrawn for any reason whatsoever, the Family Court will cease to have jurisdiction to pass a decree under Section 13B of the Act.

9. We have considered the submissions made at the Bar.

10. Section 13B of the Hindu Marriage Act reads thus:

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 marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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.

11. A reading of this provision shows that a married couple living separately for a period of one year or more, are entitled to present a petition under Section 13B of the Act for dissolving their marriage on mutual consent, provided they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Therefore, for the presentation of the petition there should be an agreement between a separated couple that they have not been able to live together and also that they had agreed that the marriage should be dissolved. Based on such agreement, once the petition is presented, further action to be taken by the Court is as provided under sub-section (2). That Section provides that on the motion of both the parties made not earlier than six months after the presentation of the petition and not later than eighteen months, if the petition is not withdrawn in the meantime, the Court shall, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree under Section 13B. Therefore the question of conducting the enquiry as provided under Section 13B(2)arises only if the petition is not withdrawn within the period specified at the opening part of this sub-section. In other words at the stage of enquiry also, the parties are at liberty to withdraw a petition and once the petition is withdrawn by either of the parties, the Court looses its jurisdiction to pass a decree of divorce by mutual consent.

12. Insofar as this case is concerned, admittedly, on the basis of Annexure-A2 compromise between the parties, petition was presented under Section13B(1) and the respondent withdrew her consent at the stage when the enquiry was to be held under Section 13B(2). Evidently, the withdrawal of the consent was a unilateral one and on facts, it is clear that such withdrawal of the consent was after availing of the advantages of some of the beneficial provisions of the compromise between the parties.

13. In this back drop, the question to be considered is whether the unilateral withdrawal of consent by one of the parties is permissible and whether the Court can enquire into the bona fides of such withdrawal and if it is found that it is not bona fide, whether a decree can be passed. The right of a party to the proceedings under Section 13B of the Hindu Marriage Act to withdraw the consent, has been considered in several judgments. K.I. Mohanan v. Jeejabai MANU/KE/0004/1988 : 1986 KHC 251 : AIR 1988 Ker. 28 : 1986 KLT 990 : 1986 KLJ 833 : 1986 KLN 538 : 1987 Mad. LR 90 : 1987 (6) Re. was a case where after the presentation of the petition under Section 13B, the case was posted for reporting reconciliation. At that stage, the wife filed an I.A. stating that she has not consented to the divorce and requested that she be allowed to withdraw the petition. That petition was allowed and on that basis the petition was dismissed. Dismissing the appeal filed by the husband, this Court held thus:

8. We are satisfied that the withdrawal of consent by the respondent for divorce by mutual consent has been unequivocally expressed by her and it seems to be permissible on a reading of sub-section (2) of Section 13B of the Hindu Marriage Act. We are also of the opinion that the matter need not be remanded for reconsideration by the Trial Court in view of the unequivocal stand taken by the respondent.

9. We would also add that it will militate against the letter and spirit of Section 13B of the Hindu Marriage Act, which contemplates an opportunity for reconciliation within a period of six months, or an extended period of eighteen months, to say that once an application is signed, a reconciliation or a withdrawal must be completely ruled out.

14. On the scope of Section 13B, different High Courts had taken different views and the Apex Court in its judgment in Sureshta Devi v. Om PrakashMANU/SC/0718/1991 : 1991 KHC 146 : AIR 1992 SC 1904 : 1991 (1) KLT 511 : 1991 (1) KLJ 553 : 1991 (2) SCC 25 : 1991 SCC (Cri) 292 : 1991 (1) GLH 440 : 1991 (1) Punj. LR 411 : 1991 Mah. L.J. 324 upheld the view taken by this Court in Mohanan's case (supra). In this judgment, on the scope of Section13B, the Apex Court held thus:

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 Jayasthree Ramesh Londhe v. Ramesh Bhikaji Londhe, MANU/MH/0358/1984 : AIR 1984 Bom. 302, has expressed the view that the crucial time for the consent for divorce under Section 13B was 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,MANU/DE/0233/1988 : AIR 1989 Delhi 73 and the Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta, 1984 (2) DMC 388 also took a similar view.

12. But the Kerala High Court in K.I. Mohanan v. Jeejabai, MANU/KE/0004/1988 : AIR 1988 Ker. 28 and the Punjab and Haryana High Court in Harcharan Kaur v. Nachhattar Singh, MANU/PH/0168/1988 : AIR 1988 P&H 27 and Rajasthan High Court in Santosh Kumari v. Virendra Kumar, MANU/RH/0030/1986 : AIR 1986 Raj. 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 1 of the Code of Civil Procedure since it is dissimilar to the situation arising under Section 13B 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 a 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.....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 bona fides 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 mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B. 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 ER 667 at p. 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) cannot be said to have laid down the law correctly and they stand overruled.

15. A similar situation was dealt with by the Apex Court, in its judgment in Smruti Pahariya v. Sanjay Pahariya MANU/SC/0980/2009 : 2009 KHC 5019 : AIR 2009 SC 2840 : 2009 (13) SCC 338 : 2009 (79) AIC 191 : 2009 (7) SCALE 331. In that case, approving the principles laid down by the Apex Court in Sureshta Devi's case (supra), and holding that the judgment in Ashok Hurra v. Rupa Ashok Hurra MANU/SC/0283/1997 : 1997 KHC 513 : AIR 1997 SC 1266 : 1997 (2) KLTSN 21 : 1997 (4) SCC 226 : 1997 AIR SCW 1314 : JT 1997 (3) SC 483 : 1997 (2) SCR 875 : 1997 (2) SCALE 582 : 1997 (3) Supreme 35 has to be treated as one, rendered in the facts of that case, the Apex Court held thus:

47. We endorse the views taken by this Court in Sureshta Devi (supra) as we find that on a proper construction of the provision in Section 13B(1) and 13B(2), there is no scope of doubting the view taken in Sureshta Devi (supra). In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra (supra) has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.

48. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi (supra).

49. We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13Bof 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 facts situation, discussed above.

50. 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 13B. So in cases under Section 13B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13B 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. In the facts of the case, the impugned decree was passed within about three weeks from the expiry of the mandatory period of six months without actually ascertaining the consent of the husband, the respondent herein.

16. Once again in Hitesh Bhatnagar v. Deepa Bhatnagar MANU/SC/0428/2011 : 2011 KHC 4390 : AIR 2011 SC 1637 : 2011 (2) KHC SN 11 : 2011 (2) KLT SN 74 : 2011 (4) SCALE 724 : 2011 (5) SCC 234 : 2011 (2) KLJ NOC 6, approving the principles in Sureshta Devi's case (supra), and also after referring to the principles laid down in Ashok Hurra's case (supra) the Apex Court reiterated the principles laid down in Sureshta Devi's case (supra) holding thus:

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 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.

16. In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen months' period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant.

17. The judgments referred to in the above paragraphs would clearly show that at the stage when enquiry is to be held under Section 13B(2) also a free consent of both the parties is required and that if consent is withdrawn by either of them, the Court will have no jurisdiction to entertain the petition or pass a decree of divorce on mutual consent.

18. The further question to be considered is whether once consent is given and is later withdrawn by one of the parties, whether the Court can enquire into the bona fides or otherwise of the withdrawal of the consent. By providing that the enquiry under Section 13B(2) shall be only if consent is not withdrawn, the statute specifically recognizes the right of the parties to withdraw the consent even at the stage of the enquiry contemplated under Section 13B(2). That right available to the parties is an unqualified right and for any reason whatsoever, if the parties or one of them, choose to withdraw their consent, such withdrawal of consent is in exercise of the right available under Section 13B(2). If that be so, it is not for the Court to probe into the bona fides or reasonableness of withdrawal of consent and once consent is withdrawn, the only option available to the Court is to close the matter at that stage. If that be the legal position, we are unable to find any fault on the part of the Family Court in having dismissed the petition on the ground of non-compliance of the requirement of Section 13B(2) of the Act.

19. However, learned counsel for the petitioner relied on the judgment of the Rajasthan High Court in Anil Khatwani v. Nisha Khatwant (SB Civil Misc. Appeal No. 1250/2008) wherein the Rajasthan High Court had taken the view that the genuineness of withdrawal of consent can be enquired into. We are unable to agree with the view taken by the Rajasthan High Court for the reason that it is plainly against the terms of Section 13B(2) and is also opposing the principles laid down by the Apex Court in the judgments noticed above.

20. The second judgment relied on by the learned counsel was that of the Delhi High Court in Contempt Case (C) No. 559/2011. That was a case where a petition under Section 13B was filed based on a memorandum of understanding between the parties. On filing of the petition, statement of the parties was recorded and in the statement given to the Court both the parties agreed to abide by the agreement and the Court directed them to honour the terms of the agreement. Despite the above, the wife withdrew from the agreement and thereupon the husband initiated proceedings under the Contempt of Courts Act. While considering that issue, the Court took the view that there was failure on the part of the wife to honour the terms of the undertaking to the Court and it was on that basis contempt proceedings were ordered to be initiated against the wife. We are afraid that the factual situation in this case is totally incomparable with the facts of the proceedings before the Delhi High Court.

21. The counsel also placed reliance on the judgment of the Delhi High Court in Rachna Jain v. Neeraj Jain MANU/DE/0742/2005 : 2005 (120) DLT 365. A reading of the judgment shows that as against the judgment in Sureshta Devi's case (supra) the Court chose to follow the judgment in Ashok Hurra's case (supra). We have already mentioned that the Apex Court in its judgment in Smruti Pahariya v. Sanjay Pahariya MANU/SC/0980/2009 : 2009 KHC 5019 : AIR 2009 SC 2840 : 2009 (13) SCC 338 : 2009 (79) A1C 191 : 2009 (7) SCALE 331 has held that the judgment in Ashok Hurra's case has to be treated as one rendered in the facts of that case only. If that be so, the judgment of the Delhi High Court does not reflect the correct legal position and therefore cannot be followed.

22. The counsel then referred the Bombay High Court judgment in Family Court Appeal No. 61 of 2010. The ratio of the judgment is available in paragraph 16 of the judgment, which reads thus:

16. As aforesaid, if the Petition is filed "simpliciter under Section 13B of the Act" for divorce by mutual consent, the Court must satisfy itself that the consent given by the parties continues till the date of granting decree of divorce. Even if one party unilaterally withdraws his/her consent, the Court does not get jurisdiction to grant decree of divorce by mutual consent in view of the mandate of Section 13B of the Act. However, the situation 18 FCA 61.10 would be different if the parties in the first instance resort to Petition for relief under Section 9 or 13 of the Act and during the pendency of such petition, they decide to invite decree for divorce by mutual consent. On the basis of agreed arrangement, if the parties were to execute Consent Terms and then file a formal Petition/Application to convert the pending Petition to be treated as having been filed under Section 13Bof the Act to grant decree of divorce by mutual consent, then, in the latter proceedings, before the decree is passed, one party cannot be allowed to unilaterally withdraw the consent if the other party has already acted upon the Consent Terms either wholly or in part to his/her detriment. In other words, the Court will have to be satisfied that: (i) there is sufficient, good and just cause for allowing the party to withdraw his consent, lest, it results in permitting the party to approbate and reprobate; (ii) that the other party would not suffer prejudice which is irreversible, due to withdrawal of the consent. If this twin requirement is not satisfied, the Court should be loath to entertain the prayer to allow the party to unilaterally withdraw his/her consent.

This paragraph itself would show that the facts of this case is totally incomparable with the facts of the case decided by the Bombay High Court. Therefore, for the aforesaid reasons, we are unable to follow of the judgments of the Rajasthan, Delhi and Bombay High Courts. In such circumstances, the only option that we have is to confirm the order passed by the Family Court and dismiss the appeal and we do so.

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