Chandrashekhar vs Smt. Brihaspati Bai on 17 December, 2024

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Chattisgarh High Court

Chandrashekhar vs Smt. Brihaspati Bai on 17 December, 2024

For Appellant : Mr. Dashrath Kushwaha, Advocate For Respondent : Mr. C.R. Sahu, Advocate PAWAN Hon'ble Shri Parth Prateem Sahu, Judge KUMAR JHA ORDER ON BOARD Digitally signed 17/12/2024 by PAWAN KUMAR JHA

1. This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short "Act of 1955") is filed questioning the legality and sustainability of the judgment and decree passed in Civil Suit No. (HMA) No. 33A/2017 on 04.04.2018 by District Judge, Baloda Bazar, District Baloda Bazar-Bhatapara, C.G., whereby the application under Section 13(B) of the Act of 1955 was dismissed.

2. Learned counsel for appellant would submit that the appellant got married with respondent on 26.05.2010. Respondent-wife resided in matrimonial home for a period of 13 months and thereafter her parents came there along with other persons with an intention to take back respondent along with them, upon which Community meeting was also taken place. Appellant was always ready 2/8 to bring respondent along with him, however, due to diverse mindset of both the applicants, dispute arose between them. Appellant had submitted an application under Section 13(1)(a) of the Act of 1955 before the District Judge, Baloda Bazar. In the said proceedings, during course of mediation respondent agreed to withdraw all the other proceedings filed by her and in the said proceedings appellant paid Rs. 1,10,000/- to respondent. He also contended that during the mediation proceeding, both the parties agreed to file an application under Section 13 (B) of the Act of 1955 seeking mutual divorce and accordingly the joint application was filed under the provisions of Section 13(B). He would submit that during pendency of proceedings under Section 13(B) for mutual divorce, respondent made statement that she will be agreed to mutual divorce only if the appellant pay Rs. 5 Lakh towards permanent alimony/ maintenance. Appellant is not financially sound to satisfy the desire of respondent and shown his inability. Learned trial Court has not considered this aspect and also the evidence brought on record by the respective parties, in particular the proceedings of the mediation which is filed before the Court as Ex. A1 signed by both the parties in its proper perspective and dismissed the application under Section 13(B) of the Act of 1955 erroneously.

3. Learned counsel for respondent would oppose the submission of learned counsel for appellant and would submit that application for divorce was filed under the provisions of Section 13(B) of the Act of 1955. He contended that under the provisions it is specifically mentioned that any party withdraws to give consent for mutual divorce then the application is not to be ordered and in view of the aforementioned provision under Section 13(B), learned trial Court has not committed any error in dismissing the suit filed under the provisions of Section 13(B) of the Act of 1955.

4. I have heard learned counsel for the parties and perused the record.

5. Perusal of application filed under Section 13(B) of the Act of 1955 would show that it was a joint application filed by appellant as party No. 1 and respondent as party No. 2, it is signed by both the parties. The mediation report is filed as 3/8 Ex.A-1. In the said mediation report, it is mentioned that the proceedings under Section 498-A is pending before the Chief Judicial Magistrate, Kasdol and further there was an order to grant maintenance of Rs. 1500/- to the respondent-wife. It also records that the respondent-wife upon payment of Rs. 1,10,000/- is ready to withdraw the criminal proceedings as also the maintenance proceedings and to file application under Section 13(B) of the Act of 1955 and the said proceedings was closed with a condition that the appellant-husband will pay sum of Rs. 1,10,000/- to the respondent-wife. The mutual compromise deed is also filed as Ex.A-2 which is dated 07.07.2017. the said proceedings is notarized, signed by both the parties. In the said proceedings though there is mention that party No. 2 (wife) is receiving Rs. 1,10,000/- and she will withdraw the proceedings pending before the family court with regard to grant of amount of maintenance and both of them will file application under Section 13(B) of the Act of 1955. It is also mentioned that the proceedings under Section 498-A will also be got decide in accordance with the terms of compromise.

6. The appellant is examined as AW-1, in his statement he stated that it is the respondent who used to quarrel with him. As per agreement, respondent got the pregnancy terminated without his knowledge; he had paid Rs. 1,10,000/- and the criminal case was closed based on the compromise entered into between the parties. He also stated that based on the compromise deed, there was agreement to submit the mutual divorce application.

7. Respondent was examined as witness No. 2, in her statement she stated that she will compromise only when the appellant pays Rs. 5 Lakh towards maintenance.

8. Learned trial court based on the documentary and oral evidence available on record recorded a finding that respondent has compromised or given her consent to mutual divorce only in case appellant pays Rs. 5 Lakh for which appellant was not agreed. Provisions of Section 13(B) of the Act of 1955 4/8 provides for divorce by mutual consent, which is extracted below for ready reference:

"13B. Divorce by mutual consent.- (1) Subject to the provision 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 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.

(2) On the motion of both the parties made not earlier than six months after the date of 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]"

9. From bare perusal of provision under Section 13(B) of the Act of 1955, it is apparent that the mutual agreement between the parties is must before the court. Section 13(B)(2) provides that the application can be ordered only if the petition is not withdrawn in the meantime ie., after six months of filing of joint application under Section 13(B) of the Act of 1955 and upon the court being satisfied after hearing the parties and if after making such enquiry 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. The decree of divorce by mutual consent can be passed only when the parties are agreed upon dissolving the marriage by decree of divorce with mutual consent.

10. In the case at hand the respondent/ applicant No. 2 had made statement before the court in her evidence of conditional agreement to the application filed under Section 13(B) of the divorce by mutual consent. Appellant refused 5/8 to agree with the condition imposed upon by respondent/ applicant no. 2 therein. In absence of the agreement between the parties, in particular the unconditional consent not given by respondent, the Court was not having the jurisdiction to allow the application under Section 13(B) of the Act of 1955 even if filed by both the parties.

11. Hon'ble Supreme Court in the case of Hitesh Bhatnagar vs. Deepa Bhatnagar reported in (2011) 5 SCC 234 while considering as to whether one of the parties may withdraw the consent at any time before actual decree of divorce is passed and observed thus:

"9. The question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash , (1991) 2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the field. In the case of Sureshta Devi (supra.), this Court took the view:

9. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately', 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 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 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 possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.

10. 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 6/8 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."

10. On the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this Court held:

13. 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 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 13B 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 7/8 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.

12. In the case of Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view:

40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court did not express any view contrary to the views of this Court in Sureshta Devi. We endorse the views taken by this Court in Sureshta Devi as we find that on a proper construction of the provision in Sections 13B(1) and 13-B(2), there is no scope of doubting the views taken in Sureshta Devi. In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.

41. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi.

42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.

43. In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13B . So in cases under Section 13B , mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent."

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12. In the aforementioned facts of the case and the decision of Hon'ble Supreme Court, I do not find any illegality or infirmity in the impugned judgment passed by learned District Judge calling any interference of this Court.

13. Accordingly, the appeal fails and it is dismissed.

Sd/-


                                                          (Parth Prateem Sahu)
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