Sandeep Kumar vs Neelam Bharti Gaur

Shiv Narayan Dhingra, J.—The petitioner was prosecuting the petition for divorce u/s 13(1) ( i a) and ( i b) of the Hindu Marriage Act before the trial court, when both the parties agreed for a divorce by mutual consent and also decided to resolve their issues regarding maintenance, custody of child etc.. An application was made by the petitioner for converting his pending divorce petition into a petition for divorce by mutual consent, which was allowed. On this, a joint amended petition u/s 13B(1) of HM Act was filed before the Court for grant of divorce. A joint statement of parties was recorded, which reads as under:

HMA Case No. 907/2001 Joint Statement of: Sh. Sandeep Kumar S/o Sh. Dharmender Kumar, R/o Chinta Haran Hanuman Mandir, Behind Rajghat Power House, Toker-I, Pusta No, New Delhi (Petitioner No. 1) on S.A:

and

Smt. Neelam Bharti Gaur, W/o Sh. Sandeep Kumar, D/o Sh. Ram Chander Sharma, R/o House No. 133/9, Shiv Puri, Gurgaon, Haryana. (Petitioner No. 2) on S.A:

We were married to each other on 1.2.1998 according to Hindu rites and ceremonies at Gurgaon, Haryana. A male child named raghav was born to us on 16.11.1998 from our wedlock. We have been living separately since 12.8.1999 due to our divergent temperaments and behavior. Efforts for our reconciliation made by our relatives could not bring about bonhomie between us. Now, there is no possibility of our living together without causing mental pain and anguish. So, we have decided to part away permanently in decent manner by taking divorce by mutual consent.

We have settled all our claims and disputes against each other amicably regarding dowry articles, istridhan, maintenance, past, present and future and also for permanent alimony and also for custody and maintenance of the minor child as per paragraphs No. 6 to 7 of our petition. The said paragraphs be read as part of our statement and we undertake to abide by the terms contained in the said paragraphs.

Now, there is no claim/dispute whatsoever is left between us after this settlement/compromise of any nature whatsoever qua this marriage. Our consent for divorce is voluntary and without any force, fraud and undue influence. There is no collusion between us in filing this petition and its contents are correct.

Sd/-

ADJ Delhi

29/4/2002.

A prayer was also made for waiving the period of six months but the Trial Court did not agree to this and passed the following order: 3. The parties have sought a decree of divorce. However, divorce cannot be granted to the parties at this stage in view of specific provisions of Section 13-B(2) of the Act ibid which requires the parties to wait at least for a period of six months from the date of presentation of their first motion petition and then on the filing of second motion after the stipulated period of six months but within the period of eighteen months, the relief of divorce by mutual consent could be granted to the parties concerned. In this view of the legal position, parties are advised to make further efforts for reviving their nuptial relationship. If they failed to effect reconciliation and still wished to part their ways permanently, they may approach the court as per the provisions of Section 13-B(2) of the Hindu Marriage Act for seeking dissolution of their marriage on the basis of mutual consent. With these observations, the present petition is disposed of. File be consigned to record room.

Wife thereafter made an application to the Trial Court that the consent given by her for divorce u/s 13-B(1) of Hindu Marriage Act be annulled since after passing of order, the parties had started living together and resumed cohabitation. Notice of this application was served upon the husband, who contested the application and stated that false allegations were made in it that they had lived together. There was no possibility of their living together rather wife had again lodged a false FIR against him and other of his relatives at City Bahadurgarh (Haryana) No. 249 on 4.10.2003 u/s 498A read with Section 34 IPC. He also filed an application that direction be issued to the wife to perform second motion u/s 13-B(2) of the HM Act and took a plea that wife could not be permitted to withdraw her consent given for divorce at the time of filing first motion u/s 13-B(1) of HM Act. Wife contested this application. Husband had also made a prayer that in case, the wife was not directed to file second motion, his initial petition u/s 13(1)( i a) and ( i b) of the HM Act be revived. The Trial Court dismissed the application of the husband for directing the wife to appear for the second motion but revived the case of the petitioner/husband u/s 13(1) (ia) and (ib) of the HM Act.

The marriage in this case had taken place on 1.2.1998 and as per the petition filed by the parties they had been living separate since 12.8.1999. There was one son of the parties named Raghav. The parties while making application u/s 13-B(1) had stated that they had settled all their claims and now none of them had to claim anything against each other and petitioner No. 2/wife had received all dowry articles and shall never claim anything including maintenance from the husband. It was also agreed that the custody of child Raghav shall remain with petitioner No. 2 i.e. wife.

It seems that after she gave statement before the Court for divorce by mutual consent and after settling all the issues of dowry, maintenance, custody etc. with the husband, she was advised by her well-wishers not to adhere to the statement made in the Court.

The petitioner by way of this petition has again prayed that the respondent/wife be directed to file second motion u/s 13-B(2) and the consent given by her at the time of first motion should be considered as final and she should not be permitted to withdraw this consent.

I consider that this prayer of the petitioner cannot be allowed by this Court in view of judgment of Supreme Court in Smt. Sureshta Devi Vs. Om Prakash, wherein Supreme Court observed as under:

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

The question with which we are concerned is whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition. The need for a detailed study on the question has arisen because of the fact that the High Courts do not speak with one voice on this aspect. The Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe has expressed the view that the crucial time for the consent for divorce u/s 13-B 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 22 Rule 1 of the CPC 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 Chander Kanta v. Hans Kumar and the Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta also took a similar view.

But the Kerala High Court in K.I. Mohanan v. Jeejabai and the Punjab and Haryana High Court in Harcharan Kaur v. Nachhattar Singh and Rajasthan High Court in Santosh Kumari v. Virendra Kumar 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 23 Rule 1 of the CPC since it is dissimilar to the situation arising u/s 13-B of the Act.

From the analysis of the section, it will be apparent 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 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 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.

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 u/s 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''s Laws of England, 4th edn., vol. 13 para 645; (ii) Rayden on Divorce, 12th edn., vol. 1, p. 291; and (iii) Beales v. Beales.

In our view, the interpretation given to the section by the High Courts of Kerala, Punjab and 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.

In the result, we allow the appeal and set aside the decree for dissolution of the marriage. In the circumstances of the case, however, we make no order as to costs.

Although it seems that the marriage has broken down irretrievably and there is no possibility of parties living together, the respondent has already again made allegations of dowry demand, cruelty etc. against the petitioner and others in an FIR but, since the irretrievable break down of marriage is not a ground available under the Hindu Marriage Act for dissolution of marriage nor this Court can issue a writ to the respondent to join the petitioner for obtaining divorce by mutual consent, this petition must fail. The petition is hereby dismissed.