Law Web: When appeal is maintainable against divorce decree by mutual consent?

In Sureshta Devi v. Om Prakash [AIR 1992 SC 1904], the Honourable Supreme

Court, analyzing the scope of Section 13-B of H.M.Act has held as under:

?13.From the analysis of the Section, it will be apparent that the filing of

the petitioner 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 92) 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withdrawn in the meantime, the Court shall.......pass a decree of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 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 If one of the parties at that stage says that X have withdrawn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 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 ER 667 at p.674 ; (1972) 2 WLR 972)?.

24. In Hina Singh v. Satya Kumar Singh [AIR 2007 Jharkhand 34], referring to

the requirements prescribed in Section 13-B of H.M.Act, to grant divorce by

mutual consent, the Court distinguished a consent decree passed in terms of

Order XXIII Rule 3 C.P.C., and a consent decree passed under Section 13-B of
H.M.Act and held that the provisions of Order XXIII Rule 3 C.P.C., is not

applicable to a decree passed under Section 13-B of H.M.Act. On similar

facts, in Sushama Pramod Taksande v. Pramod Ramaji Taksande [AIR 2009 Bombay

111], Satya Kumar Singh (supra) was followed.

25. In Roopa v. A.Shanmugam @ Suresh [2012-4-L.W.42], it was held by this Court that when divorce by mutual consent was passed in breach of the requirements prescribed under Section 13-B of H.M.Act, an appeal can be preferred to the Appellate Court.

26. Section 28 of H.M.Act, providing appeals from decrees and orders runs as

under:

28 Appeals from decrees and orders. - (1) All decrees made by the court in

any proceeding under this Act shall, subject to the provisions of sub-section

(3), be appealable as decrees of the court made in the exercise of its

original civil jurisdiction, and every such appeal shall lie to the court to

which appeals ordinarily lie from the decisions of the court given in

exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under section

25 or section 26 shall, subject to the provisions of sub-section (3), be

appealable if they are not interim orders, and every such appeal shall lie to

the court to which appeals ordinarily lie from the decisions of the court

given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a [period of

ninety days] from the date of the decree or order.? [emphasis supplied by

the Court]

27. Thus, from the above, it is seen that a decree passed by the consent of

the spouses under Section 13-B of H.M.Act dissolving their marriage is to be

distinguished from decrees passed in other matters by a Civil Court as there

are several formalities and requirements, which are prescribed under Section

13-B of H.M.Act. When there is violation of those requirements of law or there is allegation of fraud, undue influence, coercion, deception, deceit in passing a decree under Section 13-B of H.M.Act, an appeal can be made to the next Appellate Court. Further, Section 28(1) of H.M.Act is very clear that all decrees including a consent decree passed under Section 13-B of H.M.Act

is appealable.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

C.R.P.(PD) (MD) No.76 of 2014

and

M.P.(MD) No.1 of 2014

S.Rajkannu vs R.Shanmugapriya

CORAM

MR.JUSTICE P.DEVADASS

DATED: 20.08.2015

Citation:2016(6) ALLMR(JOURNAL)96

This revision has been directed by the first petitioner in H.M.O.P.No.260 of

2012, on the file of learned Principal Sub Judge, Thanjavur, to scrap

C.M.A.No.21 of 2013, pending on the file of learned Principal District Judge,

Thanjavur.

2. On 01.09.2011, revision petitioner and respondent have joined in wedlock

at Punnainallur Mariamman Temple, according to Hindu Rites and Customs. They

have no issues, but have issues. They jointly filed H.M.O.P.No.260 of 2012,

under Section 13-B of Hindu Marriage Act, 1955 (shortly, hereinafter

'H.M.Act') in the Court of Principal Subordinate Judge, Thanjavur, seeking

divorce on their own volition, since their marital bondage has been

irretrievably broken down.

3. Both were represented by very same Advocate. On the date of presentation

of the said original petition, in order to elicit their willingness, the

learned Judge recorded their statement and they have affixed their signature.

The H.M.O.P. was adjourned. As the revision petitioner / husband is very

much interested in getting divorce, he regularly, appeared before the Court.

But, the respondent / wife did not. The H.M.O.P. came to be adjourned from

time to time. Subsequently, notices were also issued to her for her

appearance, but they were in vain.

4. On 12.09.2013, revision petitioner alone was present. She was not

present. There was no representation on her behalf also. In the

circumstances, the Trial Court concluded the proceedings and dissolved their

marriage under Section 13-B of H.M.Act.

5. In the circumstances, the respondent preferred C.M.A.No.21 of 2013, under

Section 28 of the Hindu Marriage Act, to the Court of Principal District

Judge, Thanjavur, challenging the said divorce decree granted by the learned

Principal Sub Judge, Kumbakonam, raising several grounds.

6. At this juncture, the revision petitioner directed this revision alleging

that filing of the said appeal as against the divorce decree granted on their

mutual consent, is an abuse of process of the Court and thus the said

C.M.A.No.21 of 2013, pending on the file of the learned Principal District

Judge, Thanjavur, is to be struck off.

7. The learned counsel for the revision petitioner would submit that on the

date when the H.M.O.P. was presented before the Sub Judge, Kumbakonam, the

statement of both the spouses were recorded by the learned Judge and it was

signed by both, it is enough to grant the decree of divorce. In this

connection, the learned counsel for the revision petitioner cited Leela

Mahadeo Joshi v. Mahadeo Sitaram Joshi [AIR 1991 Bombay 105].

8. The learned counsel for the revision petitioner would further submit that

the decree passed by the Trial Court is a consent decree. As against a

consent decree, no appeal will lie. In this connection, the learned counsel

for the revision petitioner would quote Section 96(3) C.P.C, and cite

K.C.Dora v. G.Annamanaidu [AIR 1974 SC 1069] and Pushpa Devi Bhagat v.

Rajinder Singh [AIR 2006 SC 2628].

9. The learned counsel for the revision petitioner would further submit that

if the respondent is of the view that the consent decree was obtained

dishonestly or on coercion, the proper remedy is only to file a separate suit

to set it aside and not by way of an appeal. In this connection, the learned

counsel for the revision petitioner would cite Kewal Krishnan v. Shiv Kumar

[AIR 1970 Punjab & haryana 176], and Bhagwati Prasad v. Delhi State Mineral

Development Corpn. [AIR 1990 SC 371].

10. The learned counsel for the revision petitioner would also submit that

actually the respondent lured and trapped the petitioner. Unknowingly, he

had fallen a prey. She received all her Sreedhana articles and also Rs.2

Lakhs as lump sum amount assuring that she is willing to terminate their

marital bondage. However, after the consent decree was passed, she

challenged the same by filing the appeal in C.M.A.No.21 of 2013. It is

totally an abuse of process of the Court.

11. On the other hand, the learned counsel for the respondent would submit

that a decree dissolving the marriage by mutual consent, under Section 13-B

of H.M.Act, is a decree of a Civil Court. As per Section 13-B(2) of H.M.Act,

the learned Trial Judge is expected to conduct a detailed enquiry. But, in

this case, he did not do so. Although a decree was passed by mutual consent

as against that a statutory appeal under Section 28(1) of H.M.Act would lie

to the Appellate Court.

12. In support of his said submissions, the learned counsel for the

respondent cited the following rulings:

i. Sureshta Devi v. Om Prakash [AIR 1992 SC 1904],

ii. Hina Singh v. Satya Kumar Singh [AIR 2007 Jharkhand],

iii. Sushama Pramod Taksande v. pramod Ramaji Taksande, [AIR 2009 Bombay

111], and

iv. Roopa v. A.Shanmugam @ Suresh [2012-4-L.W.42].

13. The learned counsel for the respondent, referring to Section 13-B(2) of

H.M.Act, would contend that the mutual consent must be continued till the

date of passing the decree. However, in this case, it was not so. The

respondent was not present when the decree was passed. No enquiry as

contemplated under Section 13-B of H.M.Act was conducted.

14. I have anxiously considered the rival submissions, perused the materials

on record and decisions cited by both sides.

15. Originally, in 1955, when the personal law of Hindus were codified, the

concept of divorce by mutual consent was not accepted. There is no provision

for divorce by mutual consent in the 1955 Act. When the marriage become

useless, meaningless and remains only on paper, the Legislature thought it

fit to erase such kind of marriages and to enable the parties to go in their

own way, introduced the concept of divorce by mutual in 1976 in the Hindu

Marriage Act, 1955 by inserting Section 13-B in the parent Act.

16. Section 13-B of H.M.Act runs as under:

?13-B. 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 solemnized before or after the commencement of the

marriage Laws (Amendment) Act, 1976, on the ground 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.?

17. A reading of Section 13-B H.M.Act would show that the Act is also

concerned with preventing any hasty decisions of the spouses to go for

divorce. That is how, a cooling off period has been prescribed in Section

13-B itself. Parties were given time to think over their decision again and

again and were given chance to revise their view. Divorce by mutual consent

cannot be forced, thrusted upon a spouse. It must be out of willingness of

both. It must exist till the final order was passed by the Court.

18. In the case before us, on the first hearing date before the Trial Court,

the H.M.O.P.No.260 of 2012 for divorce by mutual consent under Section 13-B

of H.M.Act was jointly presented by both the spouses. Their statement

signifying their willingness for divorce was recorded and signed by both

before the Trial Court and thereafter it was adjourned from time to time and

thereafter the revision petitioner (husband) alone appeared and subsequently

in spite of notice, the respondent (wife) did not appear. Under the

circumstances, on 12.09.2013, the impugned order of divorce by mutual consent

was passed by the Trial Court on the date when the revision petitioner alone

was present.

19. In Leela Mahadeo Joshi v. Mmahadeo Sitaram Joshi [AIR 1991 Bombay 105],

in the joint petition for divorce by mutual consent filed under Section 13-B

of the Hindu Marriage Act, 1955, both the parties were enquired, their

evidence was recorded and all the necessary ingredients for divorce by mutual

consent under Section 13-B of H.M.Act was satisfied. Yet, the Judge, Family

Court, dismissed the petition, since he did not believe that really they

wants divorce. That order was set aside by a Division Bench of the Bombay

High Court as it is beyond the jurisdiction of the Family Court Judge under

Section 13-B of H.M.Act and granted them decree of divorce under Section 13-

B. However, in the case before us, on 12.09.2013, no such enquiry was

conducted, evidence of both was not recorded and both the spouses were not

present. Therefore, the said Bombay decision is not applicable to the

present case.

20. Passing of consent decree by the consent of both the parties to a suit /

appeal is recognized under the Code of Civil Procedure. Order XXIII Rule 1

C.P.C., recognizes this concept.

21. As per Section 96(3) C.P.C., no appeal will lie against a consent decree

(See K.C.Dora v. G.Annamanaidu [AIR 1974 SC 1069] and Pushpa Devi Bhagat v.

Rajinder Singh [AIR 2006 SC 2628]. However, on the ground of fraud,

coercion, undue influence, misrepresentation, a consent decree can be set

aside in a separate suit (See Kewal Krishnan v. Shiv Kumar [AIR 1970 Punjab &

Haryana 176].

22. However, a consent decree passed under Section 13-B of H.M.Act, granting

divorce by mutual consent of the spouses is entirely different from a consent

decree passed by a Civil Court in non-matrimonial matters.

23. In Sureshta Devi v. Om Prakash [AIR 1992 SC 1904], the Honourable Supreme

Court, analyzing the scope of Section 13-B of H.M.Act has held as under: