Rupali alias Chetna vs Sunil Data

Ajay Kumar Mittal, J.—This petition filed by the petitioner-wife questions the legality of order dated 30.1.2003 passed by the learned

Additional District Judge, Rewari whereby the trial Court on a petition filed by the parties u/s 13-B of the Hindu Marriage Act, 1955 (in short ""the

Act"") for divorce by mutual consent had framed as issue - whether the consent of the wife at the time of presentation of petition u/s 13-B of the

Act was obtained by force, fraud or undue influence?

Briefly, both the parties filed a joint petition u/s 13-B of the Act for granting a decree of divorce by way of mutual consent. The marriage

between the parties was solemnised on 29.1.2001 as per Hindu rites and ceremonies at Rewari. No issue was born out of the said wedlock and

the relations between them were not cordial from the very beginning. Both the parties have been residing separately since May, 2001. All efforts

for reunion and reconciliation having failed between the parties, they resolved to get their marriage dissolved by mutual consent. Accordingly,

petition u/s 13-B of the Act was filed jointly on 11.5.2002. Joint statement of the parties was recorded and the case was adjourned to 16.11.2002

for waiting the statutory period of six months and for recording their statements.

After about three months on 12.8.2002, the petitioner-wife appeared before the trial Court and filed an application for withdrawing her consent

and her statement to that effect was recorded by the trial Court. The wife levelled allegations that her consent had been obtained by force, fraud

and undue influence. The trial Court issued notice of the said application for 16.11.2002, The petitioner-wife thereafter also filed an application for

dismissal of the petition for divorce by mutual consent. The trial Court instead of dismissing the petition for divorce by mutual consent had framed

the following issue:-

Whether the consent of petitioner No. 1 at the time of presentation of this petition was obtained by force, fraud or undue influence, as alleged? If

so to what effect ? Rupali (Petitioner No. 1).

It is the order of the trial Court which has been assailed in this revision petition.

Counsel for the petitioner submitted that u/s 13-B of the Act, the consent of the wife on the date of dissolution of marriage is to be seen and

since the petitioner-wife has not agreed for dissolution of marriage, the husband cannot insist for a decree of divorce on the basis of consent at the

time of filing the petition for divorce by mutual consent. He placed reliance on the judgment of Division Bench of this Court in Harcharan Kaur v.

Nachhattar Singh1 A.l.R. 1988 P&H 27 He thus, submitted that the trial Court had erred in framing the issue as noted above.

No one has appeared on behalf of the respondent to-contest the petition. 7. I have heard the counsel for the petitioner and perused the record.

Section 13-B of the Act reads thus:-

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 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 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.

Section 13-B was added by Act 68 of 1976 and it provides for divorce by mutual consent. A petition may be presented jointly by both the

parties. The three essential conditions required under sub-section (1) are:-

(a) That both the spouses have been living separate for a period of one year or more;

(b) That they have not able to live together; and

(c) That they have mutually agreed to dissolve the marriage.

Under sub-section (2), the parties to such a petition can'' withdraw the petition. In case the petition is not withdrawn, the Court may after six

months but before the expiry of eighteen months grant a decree of divorce by mutual consent. The Court, however, before passing a decree has to

be 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. The very object for prescribing a period of six months after the presentation of the petition for dissolving marriage by mutual

consent in this sub-section is to give to the parties the time and opportunity to rethink on his or her decision and may have a second thought and

change of mind not to proceed with the petition. There is no prohibition contained in Section 13-B of the Act for withdrawing the consent given at

the time of moving the petition for divorce. Further, it no where provides that for withdrawing the consent if there is change of mind, it should be by

both the parties and cannot be by one party.

The Division Bench of this Court in Harcharan Kaur''s case (supra) while interpreting the provisions of Section 13-B of the Act has held as

under: -

...unless the parties to the petition u/s 13-B of the Act, who have mutually consented to have the marriage dissolved, continued to signify their

mutual consent for the dissolution of the marriage right up to the date of the decree, the marriage cannot be dissolved under sub-section (2) of

Section 13-B of the Act merely on the basis that six months earlier the parties had together presented the petition for dissolution of marriage by

mutual consent. Either of the parties to the petition u/s 13-B, that is, husband or wife, is at liberty to revoke its consent any time before the petition

is finally disposed of and if the other party is still keen to have the marriage dissolved. The other provisions of the Hindu Marriage Act are still

available for the grant of necessary relief if a case is made out for the same. The object of Section 13-B is to provide an additional speedy remedy

to the husband and wife to have the marriage dissolved if even after sufficient efflux of time both of them find, that is not possible for them to

continue as husband and wife any further. Obviously, if both the parties agree, the decree of divorce can be granted by mutual consent u/s 13-B

and if one of them fails to agree and does not want to oblige the other party by extending the requisite consent to the divorce, decree of divorce

cannot be passed u/s 13-B of the Act. For that, other provisions of the Act would have to be resorted to.

Adverting to the facts of the present case, the petitioner-wife in her application filed before the trial Court in August, 2002 has categorically

alleged that her consent had been obtained by fraud and undue influence. She has withdrawn her consent for passing a decree of divorce by mutual

consent before the passing of the decree. In law, she was entitled to withdraw the same as her consent should have continued till the passing of a

decree for divorce by mutual consent.

In view of the above, the order of the trial Court whereby it had framed the issue for determining whether the consent of the wife had been

obtained by fraud or undue influence or not cannot be legally sustained. The impugned order dated 30.1.2003 is set aside and the application for

withdrawal of petition u/s 13-B of the Act is allowed.

No Costs.