Holding

Mutual consent must subsist until the decree; a party may withdraw consent before the joint motion and the court cannot pass a decree of divorce by mutual consent without the consent of both parties at the time of the motion.

Summary

Sureshta Devi and Om Prakash filed a joint petition under Section 13‑B of the Hindu Marriage Act for divorce by mutual consent. The wife later applied to withdraw her consent, claiming it was obtained under pressure, and the District Court dismissed the petition. The High Court reversed that order, holding that consent once given could not be unilaterally withdrawn and granted a decree of divorce. On appeal, the Supreme Court examined the statutory scheme of Section 13‑B(1) and (2) and held that mutual consent must continue until the decree is passed; a party may withdraw consent before the joint motion and the court cannot pass a decree without both parties' consent. Consequently, the appeal was allowed and the decree of divorce was set aside.

Issues considered

Whether a party to a petition for divorce by mutual consent under Section 13‑B of the Hindu Marriage Act, 1955 can unilaterally withdraw consent before the decree is passed

Legislation cited

Hindu Marriage Act, 1955s. 13-B, s. 23(1)(bb)
Special Marriage Act, 1954s. 28

Subjects

divorce by mutual consentHindu Marriage Actrevocation of consentjoint motionSection 13-Bmarital law

Judgment

SMT. SURESHTA DEVI
A v.
OM PRAKASH

FEBRUARY 7, 1991

B [K. JAGANNATHA SHETTY AND S.C. AGRAWAL, JJ.]

Hindu Marriage Act, 1955: Section 13-B and 23(J)(bb)-Divorce
by mutual consent-Filing of a petition under section 13-B( 1) does not 'r- -
by itself snap marital ties-Parties are required to file a joint motion
under Section 13-B(2)-Joint Motion before the Court for hearing of the peti-
c tion should be 'of both the parties'-Mutual consent should continue till .r
passing of decree-A spouse can unilaterally withdraw his consent .... _
before passing of the divorce decree-Requirements of Section 13-B
explained-Expression 'living separately' and 'have not been able to live
together'-Scope and meaning of. 'y _
D Special Marriage Act, 1954: Section 28.

The appellant-wife and the respondent-husband filed a petition
under section 13-B of the Hindu Marriage Act, 1955 for divorce by
mutual consent in the District Court and their statements were
recorded. Subsequently, the appellant filed an application in the Court
for dismissal of the petition stating that she was not willing to be a party +--
E
to the petition and that her statement was obtained under threat and
pressure of husband. The District Judge dismissed the petition but on
appeal the High Court reversed the order of the District Judge and
granted a decree of divorce by holding that the consent to a petition for
divorce by mutual consent cannot be unilaterally withdrawn and such a
withdrawal would not take away the jurisdiction of the Court, if the
-
F
consent was otherwise free; and since the wife's consent was without -,,.-
any force, fraud or undue influence she was bound by the consent. - ..,. 1
Hence this appeal by the wife.

Allowing the appeal and setting aside the decree of divorce, this
G Court, -

HELD: 1. An analysis of Section 13-B makes it apparent that the
filing of the petition under section 13-B(l) with mutual consent does not '>---- ·
authorise the Court to make a decree for divorce. The parties are
required to make a joint motion under sub-section (2) which should not
H be earlier than six months after the date of presentation of the petition

274
SURESHTA DEVI v. OM PRAKASH 275

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 A
genuineness of the averments in the petition and also to f'md out
whether the consent was not obtained by force, fraud or undue influ-
ence. 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 B,
· that the consent of the 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'. [280D, 279C-D]

2. The period of waiting from 6 to 18 months referred to in
section 13-B(2) is intended to give time and opportunity to the parties to
reflect on their move and seek advice from relations and friends. In this c
transitional period one of the parties may have a second thought and
~ / change the mind not to proceed with the petition i.e. it may not be a
party to the joint motion under sub-section (2). This sub-section
requires the Court to hear the parties which means both the parties.
But the section does not provide that if there is a change of mind. it D
should not be by one party alone, but by both. Therefore, if one of the
parties at that stage withdraws its consent 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 nega-
'\....---J..,. tes the whole idea of mutuality and consent for divorce. Mutual con-
sent to the divorce is a sine qua non for passing a decree for divorce E
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. [280D, 281A-B]

K.1. Mohanan v. Jeejabai, A.I.R. 1988 Ker. 28; Harcharan Kaur
-, v. Nachhattar Singh, A.I.R. 1988 P & H. 27 and Santosh Kumari v. F
Y - Virendra Kumar, A.I.R. 1986 Raj. 128; approved.

Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, A.I.R.
1984 Bom. 302; Smt. Chander Kanta v. Hans Kumar and Anr., A.I.R.
1989 De. 4 73; and Meena Dutta v. Anirudh Dutta, 1984 II DMC 388
(MP); overruled. G

Halsbury Laws of England, 4th Edn. Vol. 13 para 645; Rayden
on Divorce, 12 Edn. Vol. 1 p. 291 and Beales v. Beales, 1972 2 All E.R.
667; referred to.

3. Section 13-B of the Hindu Marriage Act is in pari materia with H
276 SUPREME COURT REPORTS [1991} 1 S.C.R.

Section 28 of the Special Marriage Act, 1954. Sub-Section (1) of section
A
13-B requires that the petition for divorce by mutual consent must be
presented to the Court jointly by both the parties. There are three other
requirements in sub-section (1). Firstly,'it is necessary that immediately
preceding the presentation of the petition the parties must have been
living separately for a period of one year or more. The expression
B 'living separately' connotes not living like husband and wife. It has no
reference to the place of living. The -parties may live under the same
roof by force of circumstances, and yet they may not be living as
husband 'and wife. The parties may be living in different houses and yet
they could live as husband and wife. What seems to be necessary is that
they have no desire to perform marital obligations and with that mental
attitude they have been living separately for a period of one year
C immediately preceding the presentation of the petition. The second
requirement is that they 'have not been able to live together' which
indicates the concept of broken down marriage and it would not be
possible to reconcile themselves. The third requirement is that they
have mutually agreed that the marriage should be dNiolved. [278E-H, 279A-B]
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 633
of 1991.

From the Judgment and Order dated 1.8.1989 of the Himachal
Pradesh High Court in F.A.O. (H.M.A.) No. 28of1989.
E
Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellant.

Subhagmal Jain and H.K. Puri for the Respondent

The Judgment of the Court was delivered by
F
K. JAGANNATHA SHETTY, J. Special Leave granted.

This appeal from a decision of the Himachal Pradesh High Court
concerns the validity of a decree of dissolution of marriage by mutual
. consent, and is said, probably rightly, to raise an important issue. The
G issue is whether a party to a petition for divorce by mutual consent
under Section 13B of the Hindu Marriage Act, 1955 ('Act') can· unila-
terally withdraw the consent or whether the consent once given is
irrevocable. ·
r
The appellant is the wife of the respondent. They were married
H on 21 November 1968. They lived together for about six to seven
SURESHTA DEVI v. OM PRAKASH [SHETTY, J.] 277

months. Thereafter, it is said that the wife did not stay with the A
husband except from 9 December 1984 to 7 January 1985. That was
pursuant to an order of the Court, but it seems that they did not
live like husband and wife during that period also. On 8 January 1985,
both of them came to Hamirpur. The wife was accompanied by her
counsel, Shri Madan Rattan. After about an hour discussion, they
B
moved a petition under Section 13-B for divorce by mutual consent in
the District Court at Hamirpur. On 9 January 1985, the Court
recorded statements of the parties and left the matter there.

On 15th January 1985, the wife filed an application in the Court,
inter alia, stating that her statement dated 9 January 1985 was obtained

-
) under pressure and threat of the husband and she was· not even C
allowed to see or meet her relations to consult them before filing the
petition for divorce. Nor they were permitted to accompany her to the
Court. She said that she would not be party to the petition and prayed
for its dismissal. The District Judge made certain orders which were
taken up in appeal before the High Court and the High Court
remanded the matter to the District Jud.ge for fresh disposal. Ulti- D
mately, the District Judge dismissed the petition for divorce. But upon
appeal the High Court has reversed the order of the District Judge and
granted a decree for dissolution of the marriage by mutual consent.
The High Court has observed that the spouse who has given consent to
a petition for divorce cannot unilaterally withdraw the consent and
such with-drawal however, would not take away the jurisdiction of the E
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.

Section 13-B was not there in the original Act. It was introduced F
by the Amending Act 68 of 1976. Section 13-B provides:

"13-B(l) Subject to the provisions of the Act a petition for
dissolution of marriage by a decree of divorce may be pre-
sented to the district court by both the parties to amarriage
together, whether such marriage was solemnized before or G
after the commencement of the Marriage Laws (Amend-
ment) 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.
H
278 SUPREME COURT REPORTS [1991] 1 S.C.R.

(2) On the motion of both the parties made not earlier
A
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
B 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 effe~t from the date of the decree."

It is also necessary to read Section 23(1)(bb):
c 23(1) In any proceeding under this Act, whether defended
or not, if the Court is satisfied that-

(bb) When a divorce is sought on the ground of mutual ·~-
consent, such consent has not been obtained by force,
D fraud or undue influence, and .... "

Section 13-B is in pari .materia with Section 28 of the Special
Marriage Act, 1954. Sub-section (1) of Section 13-B requires that the
petition for divorce by mutual consent must be presented to the Court
jointly by both the parties. Similarly, sub-section (2) providing for the
,,.._ __
E motion before the Court for hearing of the petition should also be by
both the parties.

There are three other requirements in sub-section (1). There are: --
(i) They have been living separately for a period of one year.
F
(ii) They have not been able to live together, and

(iii) They have mutually agreed that marriage should be dis-
solved. ·

G The 'living separately' for a period of one year should be
immediately preceding the presentation of the petition. It is neces-
sary that immediately preceding the presentation of petition, the
parties must have been living separately. The expression 'living sepa-
>- -
rately', connotes to our mind not living like husband and wife. It has
no reference to the place of living. The parties may live under the same
H roof by force of circumstances, and yet they may not be living as
SURESHTA DEVI v. OM PRAKASH [SHETTY, J.] 279

husband and wife. The parties may be living in different houses and yet A
they could live as husband and wife. What seems to be necessary is that
they have no desire to perform marital obligations and with that
attitude they have been living separately for a period of one year
immediately preceding the presentation of the petition. The second
requirement that they 'have not been able to live together' seems to
indicate the concept of broken down marriage and it would not be
B
possible to reconcile themselves. The third requirement is that they
have mutually agreed that the marriage should be dissolved.

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 c
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 D
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 E
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, AIR
1984 Born.- 302, has expressed the view that the crucial time for the
consent for divorce under Section 13-B was the time when the petiti~n F
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 underly-
ing 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 G
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 and Anr., AIR 1989 Delhi 73 and the Madhya Pradesh High
Court in Meena Dutta v'.. Anirudh Dutta, [1984] II DMC 388 also took a
similar view.
H
280 SUPREME COURT REPORTS [1991] 1 S.C.R.

But the Kerala High Court in K.I. Mohanan v. Jeejabai, AIR
A 1988 Kerala 28 and the Punjab and Haryana High Court in Harcha- ~
ran Kaur v. Nachhattar Singh, AIR 1988 Punjab & Haryana 27 and
Rajasthan High Court in Santosh Kumari v. Virendra Kumar, AIR
1986 Rajasthan 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
B 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 opportu- 'r-
nity for either of the spouses to withdraw the consent. The Kerala
High Court in particuJar has ruled out the application of analogy under
Order XXIII Rule 1 of the Code of Civil Procedure since it is dissimilar
c
to the situation.arising under Section 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 authorise the court
to make a decree for divorce. There is a period of waiting from 6 to 18 'Y'-
months. This interregnum was obviously intended to give time and
D ·opportunity to the parties to refled on their move and seek advice
from relations and friends. In this transitiona,l period one ofthe parties
may have a second thought and change the mind not to proceed with
the petition. The spouse may not be 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 ~----
E 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
F 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 -y~r
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
G 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 juris- )---
diction 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.
H Such a decree cannot be regarded as decree by mutual consent.
SURESHTA DEVI v. OM PRAKASH [SHElTY, J.] 281

-~ Sub-section (2) requires the Court to hear the parties which A
means both the parties. If one of the parties at that stage says that "J
have withdrawn my consent", or "I am not a willing party to the
divorce", the Court cannot pass a decree of divorce by mutual con-
sent. 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 mutualitly
and consent for divorce. Mutual consent to the divorce is a sine qua B
non for passing a decree for divorce under Section 13-B. Mutual con-
sent 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 E~gland, Fourth Edition
Vol. 13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol. 1 p. 291 and c
(iii) Beales v. Beales, [1972) 2 All E.R. 667 at 6741.

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) D
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 on order as to costs. E

T.N.A. Appeal allowed.

- _.j