We are distressed at the manner in
Learned Judge has observed in the impugned order that as
which the petition was preponed by learned Judge.
the husband did not appear in the court, he directed the wife to
serve him. He has referred to the fact that the notice sent through
the advocate was not accepted by the husband or any one present
in his house and, therefore, he again directed that the husband be
served by bailiff. Learned Judge has referred to the bailiff'
s report.
Affidavit of Mr. Santosh Jadhav, clerk of advocate Smt. Deshmukh
filed in the Family Court is also on record. Mr. Santosh Jadhav has
in his affidavit stated that on instructions of Smt. Deshmukh, he
visited the house of the husband on 26/11/2007. One Mr. Shiv
Narayan Singh was present. He told Mr. Singh that he had come
to serve court summons. Mr. Singh told him that the husband was
out of town and was to come back to Mumbai after about 10 to 12
days. Therefore, as per this affidavit, the husband was to come
back to Mumbai by 12/12/2007.
It is the wife'
s case that on 4/12/2007, the husband remained
absent and, hence, the petition stood adjourned to 10/12/2007. On
5/12/2007, the wife made an application stating that she was
staying with her parents at Delhi, that the petition was adjourned to
10/12/2007 for filing of the claim affidavit and for that she will have
to stay in Mumbai leaving the children behind and, therefore, the
petition may be taken on board to enable her to file her claim
affidavit. Surprisingly, learned Judge took up the petition itself for
final hearing on 5/12/2007 and passed an exparte decree of
divorce by mutual consent. We are surprised at this. If learned
Judge was satisfied about the case made out by the wife in the
application, he could have only permitted her to file her claim
affidavit. But, there was no need for learned Judge to take up the
petition for final hearing and dispose it of. Learned Judge had
before him affidavit of Mr. Santosh Jadhav to which we have made
a reference. As per this affidavit, the husband was not in Mumbai
and he was to come to Mumbai by 12/12/2007. Even if it is
assumed for a moment that Mr. Singh, employee of the husband
was not telling the truth, learned Judge should have realized that
he had to pass a decree of divorce by mutual consent and it was
safe to take up the petition on 10/12/2007 as that was the
adjourned date. There were no emergent circumstances
warranting learned Judge to prepone the petition on 5/12/2007 and
pass an exparte decree. Courts have to be careful while passing
exparte decrees. Under section 13B of the said Act, only mutual
consent gives the court jurisdiction to pass a decree. Such ex
parte decrees would destroy the very concept of divorce by mutual
consent. We note our dissatisfaction about the manner in which
the petition was preponed and disposed of.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.39 OF 2008
Mr. S P
Versus
Ms. S P
CORAM : SMT. RANJANA DESAI &
SMT. R.P. SONDURBALDOTA, JJ.
DATE ON WHICH THE JUDGMENT
DATE ON WHICH THE JUDGMENT
PRONOUNCED : 5TH TH JUNE, 2008.
Citation; 2008 (5) MH L J 454 ( bom)
The appellant is original petitioner 2husband and the
2.
respondent is original petitioner 1wife in M.J. Petition No.F619 of
2007. For convenience, we shall refer to the appellant as “the
husband” and the respondent as “the wife”. They filed the
aforesaid petition for divorce by mutual consent under section 13B
of the Hindu Marriage Act, 1955 (for short, “the said Act”) in the
Family Court at Bandra, Mumbai.
3.
The case of the husband and the wife, as stated in the
petition, is that they are Hindus and are governed by the provisions
of the said Act. They got married on 5/3/1993 at Mumbai as per
Hindu Vedic rites. The said marriage was registered with the
Registrar of Marriages. The couple has two sons viz. Veer and
Shikhar born on 1/2/1995 and 3/4/1997 respectively. After
marriage, they resided together in Flat No.601, 2nd floor, Dinath
Court, Sir Pochkhanwala Road, Worli, Mumbai. Irreconcilable
differences arose between the two on account of temperamental
differences. Incompatibility with each other made it difficult for
them to coexist. They stopped cohabiting as husband and wife
from January, 2005. Despite innumerable efforts made by them
and their friends, they could not sort out their problems. They,
therefore, decided to end their marriage by a decree of divorce by
mutual consent under section 13B of the said Act. On these facts,
on 18/5/2007, a joint petition for divorce by mutual consent was
filed. To the petition, at ExB, they annexed consent terms, which
were to form part of the decree.
4.
Consent terms stated that the wife will have custody of the
two children. The husband was to have access to the children as
stated in the consent terms. The husband was to have unhindered
free access to the children keeping in mind their schedule and
convenience. The husband was entitled to avail weekend access
from Friday evening 6.00 p.m. to Sunday evening 6.00 p.m.
whenever he visited the children. The vacations were to be shared
equally by the husband and the wife. The husband was to avail
first half of the vacation access and he was entitled to take the
children abroad during the period of the said access. Certain
admitted dates and events will have to be stated at this stage. The
consent petition was registered on 19/5/2007. The copy of the
Roznama which is filed in the court indicates that on 14/6/2007,
both the parties were absent. The court was on leave. The
petition was adjourned for counselling. On 23/8/2006, both the
parties were absent. The petition was adjourned. Admittedly, no
counselling was done in this case. On 19/11/2007, the husband
was absent. The wife filed an application seeking issuance of
summons. The Family Court directed issuance of summons upon
payment of process as prayed. On 23/11/2007, learned advocate
Smt. Deshmukh, who had filed the petition on behalf of both the
parties, addressed a letter to the husband enclosing the summons
of the Family Court and informing the husband that the matter is
posted before 6th Family Court on 1/12/2007. On 1/12/2007,
Santosh Jadhav, clerk of Smt. Deshmukh, learned advocate, filed a
service affidavit stating that he had visited the residence of the
husband situate at 2nd floor, Dinath Court, Sir Pochkhanwala Road,
Worli, on 26/11/2007 at 8.20 a.m. when servant of the husband told
him that he was out of town since past two days and that he would
be coming back to Mumbai after 10 to 12 days. Santosh Jadhav
further stated in the affidavit that he told the husband to attend the
court on 1/12/2007 as that was the court date. On 1/12/2007, the
husband remained absent. The wife filed application seeking order
of substituted mode of service to paste the summons on the door
of the house of the husband. The Family Court allowed service of
notice by pasting at the address of the husband after observing
that after perusing the clerk's
affidavit the court was not inclined to
accept the first service as proper service. On 3/12/2007, the
Family Court issued notice to the husband directing him to remain
present in the Family Court on 4/12/2007 as the matter was fixed
for hearing on that day. Bailiff'
s report dated 3/12/2007 states that
when he went to paste the notice, he inquired about the
whereabout of the husband. He was told that the husband had
gone out. Therefore, he pasted the notice on the door of the
residence of the husband and complied with the court'
s order. On
4/12/2007, the husband remained absent despite substituted
service. Hence, the matter stood adjourned to 10/12/2007.
On 5/12/2007, the wife made an application stating that the
5.
matter was adjourned to 10/12/2007 for filing of her claim affidavit
and that she was currently staying with her parents at Delhi. She
further stated that she will have to stay in Mumbai leaving the
children behind and, hence, the matter may be taken on board
today i.e. on 5/12/2007 to enable her to file her claim affidavit.
Learned Judge allowed her to file her claim affidavit. Relying on
the judgment of the Delhi High Court in Shipra Chatterjee v.
Siddarth Chatterjee I (2007) DMC 360, learned Judge observed
that if after filing a petition for divorce by mutual consent, the
parties want to resile from consent, they must come before the
court and inform the court. If the parties do not inform the court, it
must be presumed that the initial consent is continuing. Learned
Judge observed that the husband did not appear in the court after
the period of six months from the date of filing of the petition when
the matter was placed on board. He further observed that in order
to give a chance to the husband, the wife was directed to serve
notice to the husband. Notice served through the advocate was
not accepted by the husband or any of his representatives present
in the house. Learned Judge further observed that therefore, he
had again directed substituted service. Notice was accordingly
pasted at the husband'
s residence but the husband did not remain
present. Learned Judge concluded that since the husband is not
attending the court, it should be presumed that the consent is
continuing even as on today. After so observing, learned judge
allowed the petition. He dissolved the marriage by a decree of
divorce by mutual consent under section 13B of the said Act.
Being aggrieved by the said judgment and order, the husband has
filed the present appeal.
6.
We have heard Mr. Singh, learned senior counsel appearing
for the husband at some length. Mr. Singh submitted that learned
Judge of the Family Court has fallen into a grave error in allowing
the petition in the absence of the husband on a unilateral motion
made by the wife. Mr. Singh submitted that so far as petition under
section 13B is concerned, essential jurisdictional fact is motion
made by both parties. Mr. Singh submitted that mere filing of the
joint petition does not entitle, the parties to get divorce by mutual
consent after six months. Both parties have to make a joint motion
under section 13B(2) of the said Act and a decree for divorce can
be passed only thereafter. The court has to ascertain whether,
consent is continuing or not. There is no presumption that the
consent is continuing. In support of this submission, Mr. Singh
relied upon the judgment of the Supreme Court in Smt. Sureshta
Devi v. Om Prakash (1991) 2 SCC 25. He also drew our
attention to the judgment of the Supreme Court in Ashok Hurra v.
Rupa Bipin Zaveri (1997) 4 SCC 226. He submitted that the
respondent may try to draw some support from this judgment but
the said judgment does not decide any question of law whatsoever
and, therefore, it is not a precedent on any legal question. In that
case, the Supreme Court merely exercised its power under Article
142 of the Constitution of India to finally resolve the matter by
decreeing divorce about 13 years after the petition for divorce by
mutual consent was filed. Mr. Singh submitted that in the
circumstances attempt to read out of context, certain sentences
from this judgment as laying down the law that motion
contemplated under section 13B(2) may be made by one spouse
alone, must not be allowed to succeed. Mr. Singh submitted that
observations of the Supreme Court in paragraph 13 of Sureshta
Devi's
case (supra) that the spouse may not be a party to the joint
motion under subsection 2 of section 13B do not convey that a
joint motion may be made by one spouse alone. These sentences
only mean that one spouse may refuse to join the other in a joint
motion under subsection (2) of section 13B and that there is
nothing in the section to prevent such spouse from refusing to
make a motion to the court after six months. Mr. Singh submitted
that the two Judge Bench in Ashok Hurra'
s case (supra) expressed
its tentative view that one observation of the earlier two Judge
Bench may require reconsideration in some future case, being the
observation to the effect that mutual consent should continue till
the divorce decree is passed even if the petition is not withdrawn
by one of the parties within the period of 18 months. However,
learned judges declined to refer the judgment in Sureshta Devi's
case (supra) to a larger bench for reconsideration on this solitary
point holding that it is unnecessary to decide the vexed issue. Mr.
Singh submitted that since Ashok Hurra' case (supra) was
decided purely on facts, without laying down any law, it cannot be
used as a precedent. Mr. Singh also relied on a judgment of this
court in Rajashri R. Shasane v. Rajendra Shasane, 1997 (1)
Mh.L.J. 254. He also relied on Girija Kumari v. Vijayanandan,
AIR 1995 Kerala 159, Satyabhama Nayak v. Narendra Kumar
Nayak, AIR 1997 Orissa 47 and Swagata Ghosh v. Debasis
Ghosh 2005(4) CHN 716. Mr. Singh contended that learned
Judge had no reason to prepone the case to 5/12/2007 and grant
a decree of divorce by mutual consent. There was no such
emergent situation. Preponing of the case itself renders the decree
vulnerable.
7.
On merits, Mr. Singh drew our attention to the affidavit of the
husband and submitted that after filing of the consent terms, the
wife had surreptitiously, in breach of assurances given by her,
admitted the children in a school in Delhi. The husband strongly
protested against this. Mr. Singh submitted that the fact that due to
this attitude of the wife, the husband had withdrawn his consent,
was known to the wife as well as to their advocate. Mr. Singh
submitted that the nonappearance of the husband in the court and
his not signing or filing of the affidavit sent by their common
advocate on email clearly indicated that his consent did not
continue. Mr. Singh submitted that it is, inter alia, the stand of the
wife that the husband was not attending the court so as to harass
her and that the husband deliberately refused to accept summons.
Mr. Singh submitted that assuming all this to be true, that would
only lead to the inference that the husband did not want to consent.
Mr. Singh submitted that in any event, without going to the facts, on
pure interpretation of section 13B, this court will have to hold that
the husband and wife have to make a joint motion for a decree of
divorce by mutual consent. He submitted that in the
circumstances, the impugned judgment and order be set aside.
Mr. Dada, learned senior counsel appearing for the
8.
respondentwife submitted that the impugned order merits no
interference. He drew our attention to the affidavit of the wife and
submitted that the entire story that the wife had, without consulting
the husband, admitted the two sons in a school in Delhi, is false.
He submitted that the sons joined the school in Delhi on 3/5/2007.
ig
The husband knew that the children were admitted in a school in
Delhi. Knowing this fact, he filed a joint petition on 18/5/2007. In
fact, even the husband wanted to admit the children in a boarding
school. He had earlier attempted to admit them in a boarding
school, but the attempt failed. Mr. Dada submitted that reliance
placed by the appellant on Sureshta Devi' case (supra) is
s
misplaced. He submitted that in that case, the Supreme Court was
seized only of the issue whether a party to the petition for divorce
by mutual consent under section 13B of the said Act can
unilaterally withdraw the consent or the consent once given is
irrevocable. The petition under section 13B for divorce by mutual
consent was moved on 8/1/1985. Application seeking dismissal
was filed by the respondentwife in a week'
s time i.e. on 15/1/1985
stating that her statement was obtained under pressure and threat.
On the basis of these two material facts, the District Judge
dismissed the petition for divorce. This dismissal was reversed by
the High Court in appeal and a decree for dissolution of marriage
by mutual consent was granted. The High Court reasoned that a
spouse who had given consent could not unilaterally withdraw the
consent. The Supreme Court observed that the question with
which it was concerned was 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. Mr. Dada pointed out that pertinently,
the Supreme Court observed in paragraph 13 that “the spouse may
not be a party to the joint motion under subsection (2). There is
nothing in the section which prevents such course”. Mr. Dada
submitted that this observation clearly indicates that both spouses
need not be party to the joint motion. Mr. Dada submitted that the
phrase “joint motion” is not to be found in section 13B(2). He
submitted that the Supreme Court has held that one of the spouses
need not be a party to the motion under subsection (2). The
Supreme Court has affirmed the position that the motion can be
made even by one of the spouses alone. Mr. Dada submitted that
if the Supreme Court was of the view that both spouses had to file
the motion then the entire consideration of the aforesaid question
would have been unnecessary.
Mr. Dada submitted that the Supreme Court has held that
9.
mutual consent to the divorce is the sine qua non for passing a
decree for divorce under section 13B and it should continue till the
divorce decree is passed. Mr. Dada submitted that if the motion
under subsection (2) had to be made by both the spouses then no
question could ever arise of one of the spouses withdrawing
consent prior to the filing of the motion under subsection (2) or
stating in court that he or she has withdrawn the consent.
10.
Mr. Dada submitted that paragraph 14 of the judgment in
Sureshta Devi's
case (supra) also proceeds on the basis that the
consent reposed in the petition continues until one of the spouses
withdraws it by some overt statement or act. No second or '
repeat'
consent is required at the subsection (2) stage. Hence, as long as
the consent already given by the petitioner is not withdrawn (either
the sine qua non to subsection (2) is met.
11.
by withdrawal of the petition itself or by withdrawal of the consent),
Mr. Dada submitted that in the present case, the husband
has admittedly never withdrawn his consent. The same continued
till the decree of divorce was passed. The husband has all
throughout acted upon and taken benefit of the consent terms to
his advantage from the date of filing of the consent petition till the
date of decree and even after the present appeal was filed and,
hence, he cannot be permitted to stall the passing of decree of
divorce by mutual consent.
12.
Mr. Dada relied on the observation of the Supreme Court in
Ashok Hurra'
s case (supra) to the effect that certain observations
made in Sureshta Devi'
s case (supra) are very wide and require
reconsideration.
13.
Mr. Dada relied upon the judgment of the Rajasthan High
Court in Smt. Suman v. Surendra Kumar, AIR 2003 Rajasthan
155. He submitted that neither in facts nor in law, the husband
has made out any case warranting interference with the impugned
order.
The crucial question involved in this appeal is whether under
14.
section 13B(2) of the said Act, the husband and the wife have to
make a joint motion in the court after six months from the date of
presentation of the petition for divorce by mutual consent and
before 18 months from the said date for a decree of divorce by
mutual consent or whether the initial consent given at the stage of
presentation of the petition must be presumed to have continued
during such period until one of the spouses withdraws it by some
overt act or withdraws the petition.
15.
Section 13B of the said Act needs to be quoted. It reads
thus:
“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 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.
17
(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 subsection
(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 solemnised
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.
16.
We must first begin with the judgment of the Supreme Court
in Sureshta Devi' case (supra). In that case, the husband and
wife were married on 21/11/1968. On 8/1/1985, both of them
moved a petition under section 13B for divorce by mutual consent.
On 9/1/1985, the court recorded the statement of the parties. On
15/1/1985, the wife filed an application stating that her statement
dated 1/9/1985 was obtained under pressure. She prayed for
dismissal of the petition. District Judge dismissed the petition for
divorce. Upon appeal, the High Court observed that the spouse
who has given consent to a petition for divorce cannot unilaterally
withdraw the consent and such withdrawal, however, would not
take away the jurisdiction of the court to dissolve the marriage by
mutual consent, if the consent was otherwise free. The High Court
also recorded a finding that the wife gave her consent to the
petition without any force, fraud or undue influence and, therefore,
she was bound by that consent. The Supreme Court had to,
therefore, decide whether a party to a petition for divorce by mutual
consent under section 13B of the said Act can unilaterally
withdraw the consent or whether the consent once given is
irrevocable. The Supreme Court analyzed section 13B. The
Supreme Court observed that section 13B(1) requires that the
petition for divorce by mutual consent must be presented jointly by
both the parties. Similarly, motion under subsection (2) must also
be made jointly by both the parties. This motion enables the court
to proceed with the case to satisfy itself, inter alia, as to whether
the consent is free or not. The Supreme Court observed that the
filing of the petition with mutual consent does not authorize the
court to make a decree for divorce. There is a period of waiting
from 6 to 18 months. This interregnum, observed the Supreme
Court, 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 Supreme Court further observed that the spouse may
not be a party to the joint motion under subsection (2). There is
nothing in the section which prevents such course. The Supreme
Court further observed that 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 Supreme Court then observed that the view taken by
the High Courts of Bombay and Delhi 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, is not
correct. The Supreme Court observed that 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. The Supreme Court clarified that if there is
no mutual consent at the time of the enquiry, the court gets no
jurisdiction to make a decree for divorce and, 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. The Supreme Court further observed that 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, observed the Supreme Court,
is a sine qua non for passing a decree for divorce under section
13B and it should continue till the divorce decree is passed. The
Supreme Court further observed that it is a positive requirement for
the court to pass a decree for divorce. The consent must continue
to decree nisi and must be valid subsisting consent when the case
is heard. The Supreme Court observed that the view taken by the
Kerala High Court and Punjab & Haryana High Court 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, is the
17.
correct view.
In our opinion, in view of the above clear and authoritative
pronouncement of law by the Supreme Court, it is really not
necessary for us to interpret section 13B(2). The Supreme Court
has clearly ruled that motion contemplated under section 13B(2)
must be made jointly by the parties and that the filing of the petition
with mutual consent does not authorise the court to make a decree
for divorce. During the waiting period from 6 to 18 months, one of
the parties may change the mind and may not want to proceed with
the petition. The Supreme Court has clarified that there should
also be a mutual consent when the parties move the court with a
request to pass a decree of divorce by mutual consent and the
court must be satisfied about the consent of the parties. The
Supreme Court has further clarified that if there is no mutual
consent at the time of enquiry under section 13B(2), the court gets
no jurisdiction to make an enquiry and pass a divorce decree at the
instance of one of the parties and against the consent of other,
because such a decree would negate the whole idea of mutual
consent for divorce. We are of the opinion that these observations
answer the question which is posed before us. The motion
contemplated under section 13B(2) is a joint motion made by both
the parties. Decree of divorce by mutual consent cannot be
passed by the court, on a motion made by one spouse, on the
assumption that initial consent is continuing because the petition is
not withdrawn or consent is not withdrawn by some overt act by the
other spouse during the relevant period.
18.
It was pointed out by Mr. Dada learned counsel for the
respondent that in this judgment the Supreme Court has observed
that the spouse may not be a party to the joint motion under sub
section 2 of section 13B; that there is nothing in the section which
prevents such course and that the section does not provide that if
there is a change of mind, it should not be by one party alone but
by both. Mr. Dada submitted that this observation support the
respondents'
case that motion contemplated under section 13B(2)
may not be joint. He submitted that in fact section 13B(2) does
not contain the words “joint motion”. He also drew our attention to
the definition of word “motion” as contained in Words & Phrases
Permanent Edition Volume 27A and submitted that motion can be
made by one party.
We are not impressed by this submission. We have already
19.
quoted extensively from Sureshta Devi'
s case (supra). A reading of
this judgment leaves no room for doubt that there should be mutual
consent when parties move the court under section 13B(2). No
decree under section 13B(2) can be passed on initial consent and
the court must be satisfied about existence of mutual consent at
the time it passes the decree. It is true that ordinarily, a motion can
be made by one party to a proceeding. But, section 13B(2) begins
with words “on the motion of both the parties”. Therefore, motion
contemplated therein has to be made by both parties. In fact, in
Sureshta Devi'
s case (supra), the Supreme Court has laid stress on
these words and made the observations quoted above. It is not
open for us to differently interpret section 13B of the said Act.
In our opinion, sentences from Sureshta Devi' (supra)
20.
judgment on which reliance is placed by Mr. Dada, learned counsel
for the respondent which we have quoted earlier, are torn out of
context. We are inclined to accept the submission of Mr. Singh,
learned counsel for the appellant that all that these sentences
mean is that one spouse may refuse to join the other in a joint
motion under subsection (2) of section 13B and that there is
nothing in the section to prevent such spouse from refusing to
make a motion to the court after six months. Nothing much can be
read into these sentences.
21.
Though we are of the opinion that in view of Sureshta Devi'
judgment (supra), no further discussion is necessary on the
question involved in this petition, it is necessary to refer to the
judgment of the Supreme Court in Ashok Hurra' case (supra),
s
because it is contended by Mr. Dada that in this judgment, the
Supreme Court has expressed reservations about the view taken
by it in Sureshta Devi's c
ase (supra).
In Ashok Hurra' case (supra) the marriage between the
s
22.
appellant husband and the respondent wife was solemnized on
3/12/1970 according to the Hindu rites. On account of differences,
they could not stay together. From 30/6/1983, they started staying
separately. On 21/8/1984, a joint petition for divorce was filed
under section 13B of the said Act. Both of them appeared before
the court and filed the petition. On 4/4/1985, the husband alone
moved an application praying for a decree of divorce. Court issued
notice to the wife. Hearing of the petition commenced on
15/4/1985. The case was adjourned to various dates for some
reason or the other. On 27/3/1986, the wife moved an application
for withdrawing consent. The husband contended that the wife
could not revoke the consent after a period of 18 months. He
prayed that decree of divorce by mutual consent be passed. The
trial court dismissed the petition as the consent was withdrawn
before the decree could be passed. In appeal a Single Judge of
the High Court held that once the transitional period of 18 months
was over and if the petition is not withdrawn or consent is not
revoked in the meantime, the court shall pass a decree of divorce
by consent after making enquiry to satisfy the requirements of
section 13B. The Single Judge also observed that the marriage
had irretrievably broken down. The Single Judge thus set aside
the trial court' order and passed a decree for dissolution of
marriage. In letters patent appeal, the Division Bench of the High
Court set aside the Single Judge'
s order holding that irretrievable
break down of marriage is no ground for divorce and that the wife
had withdrawn her consent even before the trial court could make
an enquiry. It was argued relying on Sueshta Devi'
s case (supra)
that it is open to one of the parties to withdraw the consent, and
that the mutual consent to the divorce is a sine qua non for passing
a decree for divorce under section 13B. On facts, the Supreme
Court was of the opinion that the marriage had broken down
irretrievably and, therefore, the Supreme Court dissolved the
marriage by a decree of divorce by mutual consent.
23.
We notice that in the context of the reliance placed by the
husband in that case on the judgment in Sureshta Devi' case
s
(supra), the Supreme Court observed that in Sureshta Devi's
case
(supra) the consent was withdrawn within a week from the date of
filing of the joint petition under section 13B i.e. within the time limit
prescribed under section 13B(2) of the said Act and the crucial
question was whether consent once given could be withdrawn
unilaterally. The Supreme Court observed that the question
whether a party to a joint application filed under section 13B can
ig
withdraw the consent beyond the timelimit prescribed under
section 13B(2) did not arise for consideration. It is in this context
that the Supreme Court observed that the observation of the
Supreme Court in Sureshta Devi's
case (supra) to the effect that
mutual consent should continue till the divorce decree is passed,
even if the petition is not withdrawn by one of the parties within the
period of 18 months, appears to be too wide and does not logically
accord with section 13B(2) of the said Act. Reservation expressed
by the Supreme Court is only regarding the view expressed by the
Supreme Court in Sureshta Devi' case (supra) that mutual
consent must continue even beyond 18 months if the petition is not
withdrawn within the period of 18 months. No disagreement or
reservation is expressed about the view expressed that under
section 13B(2), there should be mutual consent when the parties
move the court with a request to pass a decree of divorce within
the stipulated period. The Supreme Court has not dissented from
the observation that under section 13B(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
ig
said date. In any case, the Supreme Court has not expressed any
final opinion on any question. The Supreme Court has expressed
that the judgment in Sureshta Devi' case (supra) may require
reconsideration in an appropriate case but since it had reached the
conclusion on the facts that the marriage had irretrievably broken
down, it was unnecessary to decide the vexed issue. It is pertinent
to note that though the Supreme Court has held that the decision in
Sureshta Devi'
s case (supra), requires reconsideration it has not
declared that Sureshta Devi'
s case (supra) is no longer a good law.
In our opinion, therefore, judgment in Sureshta Devi'
s case (supra),
still holds the field. The observations of the Supreme Court in
Sureshta Devi'
s case (supra), that there should be mutual consent
when the parties move the court with a request to pass a decree
for divorce, that under section 13B(2) they have to make a joint
motion, that the court should be satisfied about the bonafides and
the consent of the parties and that if there is no mutual consent at
the time of the enquiry, the court gets no jurisdiction to make a
decree of divorce, lay down the law on the point. Since Ashok
Hurra's
case (supra) is decided on facts and since it does not lay
down any law, it cannot be used as a precedent. Ashok Hurra'
case (supra) does not help the respondent.
It is also pertinent to note that several High Courts have
24.
followed Sureshta Devi'
s case (supra). We may usefully refer to
the judgment of the Kerala High Court in Girija Kumari' case
s
(supra). In that case, the appellant and her husband i.e. the
respondent had filed a petition before the Family Court for a decree
of divorce under section 13B of the said Act. After expiry of the
period of six months on the motion of the respondenthusband, the
Family Court took up the matter and examined him. The appellant
wife was absent. Nor did she withdraw the petition. After
examining the respondent husband, the Family Court held that as
the appellantwife did not turn up to withdraw the petition, she is
consenting to the divorce and accordingly passed a decree of
divorce. Relying on Sureshta Devi'
s case (supra), the Kerala High
Court held that mere filing of the petition by both the parties
together is not sufficient and if one of the parties did not join in
moving the court as contemplated under subsection 2 of section
13B, then a decree of divorce passed by the Family Court cannot
be termed to be a consent decree of divorce. Family Court'
judgment was in the circumstances, set aside.
25.
In Swagata Ghosh'
s case (supra), relying on Sureshta Devi's
case (supra), the Calcutta High Court held that in order to get the
relief of mutual divorce on the application of the parties, it is
necessary that it must be moved by both the parties on the second
occasion; but if one of them is absent, the ingredients of section
13B(2) are absent and the court could not presume that the wife
has not withheld her earlier consent.
26.
Attention of Calcutta High Court was drawn to section 23(1)
(bb) which states that when a divorce is sought on the ground of
mutual consent and the court is satisfied that such consent has not
been obtained by force, fraud or undue influence the court shall
decree the relief accordingly. It was contended that even if one of
the parties does not move the court for decree six months after
presentation of the petition, the court may decide whether there is
any force, fraud or undue influence exerted at the time of filing of
the petition and, if the court comes to the conclusion that no such
force, fraud or undue influence was exerted, it may ex parte pass a
decree of divorce by mutual consent. The Calcutta High Court
rejected this submission by observing that the legislature has cast
a duty upon the court to not only see that the consent was not
obtained by force, fraud or undue influence but also to be satisfied
that even after six months from filing of the application, the parties
have not changed their earlier decision and such fact must be
conveyed to the court on the motion of both the parties. We
respectfully agree with this view.
27.
In Smt. Satyabhama Nayak's
case (supra), the Family Court
had proceeded on the basis that for a decree under section 13B
consent granted at the time of filing the petition is sufficient. The
Orissa High Court relying on Sureshta Devi'
s case (supra) held that
the course adopted by the Family Court is not sanctioned in law.
The Orissa High Court reiterated what the Supreme Court has said
in Sureshta Devi's
case (supra) that under section 13B(2) there
should also be a mutual consent when the parties move the court
with a request to pass a decree of divorce.
In N.G. Rama Prasad' case (supra), the Karnataka High
28.
Court was considering whether the court before which a petition
under section 13B of the said Act seeking decree of divorce by
consent is presented can proceed to consider the petition on merits
after the expiry of six months from the date of presentation, if one
of the parties to the petition withdraws the consent given or refuses
to join the other to make a motion for consideration of the petition
on merits. While dealing with this question, the Karnataka High
Court inter alia held that a petition under section 13B must be
made by consent of both the parties and the motion for
29.
of the petition must be made by both the parties.
consideration of the petition after six months from the presentation
On this question, the lone voice which states that consent of
the husband or wife who remains absent at the time of motion
contemplated under section 13B(2) can be inferred is that of
Rajasthan High Court. In Suman'
s case (supra), on which reliance
is placed by Mr. Dada, a joint petition was filed by the husband and
wife for obtaining divorce by mutual consent on 15/1/1999. In spite
of a few adjournments, the husband did not appear before the
Family Court at the stage of second motion though the wife
appeared on each date of hearing. The wife moved an application
for summoning the husband as a witness to record his statement.
The Family Court rejected the application and declined to issue
notice to the husband. The Family Court was of the view that it
was for both the parties to appear before the Family Court to obtain
decree of divorce by mutual consent. By its judgment dated
27/9/1999, the Family Court rejected the application. The
Rajasthan High Court allowed the appeal carried from the said
judgment on the ground that by his continued absence, the
husband had frustrated the proceedings. He had adopted a course
of silence to harass the wife. The Rajasthan High Court further
observed that merely because the second motion was not signed
by both the parties, it cannot be said that consent of the husband
was missing at the second stage. When the husband had left the
matter for inference, then the inference ought to be drawn in favour
of consent rather than for absence of consent. The Rajasthan High
Court further observed that what is of importance is consent and
not the format of moving the second motion. In our opinion, in view
of the authoritative pronouncement of the Supreme Court in
Sureshta Devi's
case (supra), the reliance placed on this judgment
is wholly misplaced. It appears that attention of the Rajasthan High
Court was not drawn to the judgment in Sureshta Devi' case
s
(supra). Rajasthan High Court has not noticed it. Therefore, its
judgment in Suman' case (supra) is per incuriam and
s
unsustainable.
30.
In view of our conclusion based on Sureshta Devi' case
(supra), that there should be mutual consent when the parties
move the court with a request to pass a decree of divorce under
section 13B(2), that motion contemplated under section 13B is
joint, that the court gets no jurisdiction to make a decree of divorce
in the absence of mutual consent and that the court cannot
presume that the initial consent has continued because one of the
spouses has not withdrawn the petition or the consent within the
stipulated period, the impugned judgment which takes a contrary
view must be set aside. Learned Judge of the Family Court was
clearly in error in observing that “the law must presume the consent
having been given at the threshold before the court being
authenticated, the same is continuing one unless otherwise proved
to be contrary”. Had learned Judge' attention been drawn to
Sureshta Devi's
case (supra), he would have perhaps not made
such observations. Learned Judge' reliance on Delhi High
Court' judgment in Shipra Chatterjee'scase (supra) is in our
opinion wholly misplaced.
31.
Even if we accept the affidavit of the wife filed in this court as
giving the correct facts, it only means that the husband was willfully
remaining absent from the court, that he had made false
allegations against her and that his attempt was to cause
harassment to her and to frustrate the divorce proceedings. Non
appearance of the husband in the court, his not signing or not filing
of the affidavit sent by their common advocate on email are
indicative of the fact that the consent did not continue. Assuming
that the court can draw inference about consent or presume
consent from the conduct of a spouse, on the facts stated by the
wife, the husband's
consent can never be inferred. The wife'
s case
militates against any inference that consent of the husband was
continuing. By no stretch of imagination, learned Judge could have
reached the conclusion which he has reached.
32.
Though we have given the gist of the facts, we have refrained
from commenting on them because any observation made by us
on facts may have impact on the proceedings which the parties
may initiate in future. Besides, for determination of the question of
law raised in this petition, it was not necessary to comment on
facts. But we will be failing in our duty if we do not refer to a very
disturbing aspect of this case. We are distressed at the manner in
Learned Judge has observed in the impugned order that as
33.
which the petition was preponed by learned Judge.
the husband did not appear in the court, he directed the wife to
serve him. He has referred to the fact that the notice sent through
the advocate was not accepted by the husband or any one present
in his house and, therefore, he again directed that the husband be
served by bailiff. Learned Judge has referred to the bailiff'
s report.
Affidavit of Mr. Santosh Jadhav, clerk of advocate Smt. Deshmukh
filed in the Family Court is also on record. Mr. Santosh Jadhav has
in his affidavit stated that on instructions of Smt. Deshmukh, he
visited the house of the husband on 26/11/2007. One Mr. Shiv
Narayan Singh was present. He told Mr. Singh that he had come
to serve court summons. Mr. Singh told him that the husband was
out of town and was to come back to Mumbai after about 10 to 12
days. Therefore, as per this affidavit, the husband was to come
34.
back to Mumbai by 12/12/2007.
It is the wife'
s case that on 4/12/2007, the husband remained
absent and, hence, the petition stood adjourned to 10/12/2007. On
5/12/2007, the wife made an application stating that she was
staying with her parents at Delhi, that the petition was adjourned to
10/12/2007 for filing of the claim affidavit and for that she will have
to stay in Mumbai leaving the children behind and, therefore, the
petition may be taken on board to enable her to file her claim
affidavit. Surprisingly, learned Judge took up the petition itself for
final hearing on 5/12/2007 and passed an exparte decree of
divorce by mutual consent. We are surprised at this. If learned
Judge was satisfied about the case made out by the wife in the
application, he could have only permitted her to file her claim
affidavit. But, there was no need for learned Judge to take up the
petition for final hearing and dispose it of. Learned Judge had
before him affidavit of Mr. Santosh Jadhav to which we have made
a reference. As per this affidavit, the husband was not in Mumbai
and he was to come to Mumbai by 12/12/2007. Even if it is
assumed for a moment that Mr. Singh, employee of the husband
was not telling the truth, learned Judge should have realized that
he had to pass a decree of divorce by mutual consent and it was
safe to take up the petition on 10/12/2007 as that was the
adjourned date. There were no emergent circumstances
warranting learned Judge to prepone the petition on 5/12/2007 and
pass an exparte decree. Courts have to be careful while passing
exparte decrees. Under section 13B of the said Act, only mutual
consent gives the court jurisdiction to pass a decree. Such ex
parte decrees would destroy the very concept of divorce by mutual
consent. We note our dissatisfaction about the manner in which
the petition was preponed and disposed of.
35.
In the view that we have taken, the impugned judgment and
decree dated 5/12/2007 passed by the Family Court, Mumbai in
Petition No.F619 of 2007 is quashed and set aside.
The petition is disposed of in the aforestated terms.
36.
[SMT. RANJANA DESAI, J.]
[SMT. R.P. SONDURBALDOTA, J.]
9/6/2008
We declared our judgment in this appeal on 5/6/08. We
directed the parties to maintain status quo because the respondent
wants to challenge our judgment in the Supreme court. On 5/6/08
our attention was drawn by learned counsel for the respondent to
Section 22 of the Hindu Marriage Act, which says that proceedings
under the Hindu Marriage Act should be held in camera and any
matter in relation to such proceedings may not be printed or
published except judgment of the High Court or the Supreme Court
printed or published with the previous permission of the court. It
was pointed out to us that the press has given undue publicity to
this matter on account of the fact that the respondent is related to a
politician. Learned counsel for the respondent requested this court
to pass an order restraining the press from publishing any matter in
relation to present proceedings.
It appears that no request was made to the trial court that
proceedings be held in camera. No such request was made to this
court when the appeal was heard for admission. No such request
was made when we started final hearing of this appeal. Press has
already published news report about this appeal. We, therefore,
posted the appeal for appropriate orders on 9/6/08. We requested
learned Advocate General to assist us. As per our order this
appeal has appeared on our board today. In view of the request
made on behalf of the respondent, we had directed our office not to
give copy of our judgment to anybody till further orders.
We have heard learned Advocate General Shri Kadam and
Mr. C.U. Singh learned Senior Counsel appearing for the appellant.
Mr. Dada learned Senior Counsel appearing for the respondent
has made a statement that the respondent does not wish to press
the prayer made by her. In view of this statement question of
passing any restraint order does not arise. However, it is
necessary to note that the present matter is like any other
matrimonial matter and the fact that the respondent is related to a
politician, does not change it'
s character. Section 22 is couched in
unambiguous language. We trust the discretion of the press. We
are sure that having regard to Section 22 of the Hindu Marriage Act
and considering the fact that two minor children are involved in this
matter, the press will not mention the names of the spouses and
the children in their news report. The law point which, we have
decided is of some importance and can be published without
naming the parties. We must record that learned counsel for the
parties have no objection, if the judgment is reported in the Law
Reports mentioning the names of the parties.
[SMT. RANJANA DESAI, J.]
[SMT. R.P. SONDURBALDOTA, J.]
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