Allahabad High Court
Vinay Kumar Srivastava vs Smt. Amita Srivastava on 16 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2523
Bench: Anjani Kumar Mishra, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 9 Case :- FIRST APPEAL Defective No. - 314 of 2020 Appellant :- Vinay Kumar Srivastava Respondent :- Smt. Amita Srivastava Counsel for Appellant :- Rakesh Kumar Hon'ble Anjani Kumar Mishra,J.
Hon'ble Prakash Padia,J.
1. Instant First Appeal is directed against the Judgment and Decree dated 27.11.2020 passed by the Principal Judge, Family Court, Allahabad in Matrimonial Case No. 1186 of 2018 (Vinay Kumar Srivastava Vs. Smt. Amita Srivastava) under Section 13B of the Hindu Marriage Act, 1955 ("Act,1955"), on withdrawal of consent unilaterally by the respondent-wife when the matter came up for second motion after expiry of the cooling period for passing decree of divorce for compliance of the mandate of sub-section(2) of Sec.13B of the Act,1955.
2. Brief facts of the case are that marriage of the appellant along with respondent was solemnized on 1.12.1991 according to Hindu rites & customs but on account of matrimonial differences between them, at one stage they took decision to obtain decree of divorce by mutual consent & that resulted into filing of a joint application seeking decree of divorce by mutual consent u/S.13B of the Act,1955 on 27.07.2018.
3. The Family Judge took note of the contents of the application that they are living separately for a period of more than five years and have not been able to live together. Taking note of the contents of the application for withdrawal of consent duly supported with affidavit, the Family Judge dismissed the joint application filed by the parties seeking decree of divorce by mutual consent under its order impugned dated 27.11.2020 which is subject matter of challenge in the instant First Appeal.
4. It is argued by Sri Rakesh Kumar, learned counsel for the appellant that the withdrawal of application was a malafide act of the respondent and she deserves indulgence from this Court more so when the requirement/ mandate of law has been complied with by the parties for seeking decree of divorce with mutual consent as envisaged u/S.13B of the Act and the later withdrawal of consent by her may not come in way of the appellant in getting decree of divorce by mutual consent and rejection of their joint application by the Family Court under order impugned dt.27.11.2020 needs interference by this Court.
5. Under Section 13B (1) of the Act,1955 the requirement is that the petition for divorce with mutual consent must be presented to the Court jointly by both the parties & have to fulfill three requirements envisaged under sub-section (1) that they are living separately for a period of one year or more; they have not been able to live together and have mutually agreed that the marriage should be dissolved & in the instant case in their joint application it was specifically stated that they are living separately for a period of more than five years and this was the statement made by both of them when recorded by the Family Court on 27.07.2018 that they are living separately for a period of more than five years and the mandatory condition being fulfilled which was the requirement of law that they are living separately for a period of five years immediately preceding the presentation of the petition, the joint application filed by them seeking decree of divorce by consent was incompetent and that being so no order could have been passed by the Family Court and that apart further submits that sub-section(1) of Sec.13B of the Act,1955 intends to give time & opportunity to the parties to revisit & seek advice of their relatives & friends and this transitional period for the parties is to revisit & reconsider their decision as to whether he/she is strict to the consent which was initially recorded at the time of presentation of the petition for divorce and such mutual consent should always continue till the decree of divorce is granted and in the instant case the respondent wife on revisiting the matter was of the view that it may not be in her interest to dissolve their marriage with mutual consent and accordingly filed application seeking withdrawal of her consent and at least after the consent being withdrawn by the respondent wife certainly no decree could have been granted of divorce on mutual consent as prayed for u/S.13B of the Act,1955 and in the given facts & circumstances no error was committed by the Family Court rejecting their joint application under order impugned dated 27.11.2020.
6. We have heard counsel for the appellant and perused the material on record. Sec.13B of the Act,1955 which has been introduced by Amending Act 68 of 1976 being relevant for the present purpose is as under :-
"13B. Divorce by mutual consent.-(1) Subject (6 of 13) [CMA-247/2017] 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 solemnised before or after the commencement of the 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 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 solemnised 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."
7. It may also be necessary to take note of Sec.23(1)(bb) of the Act,1955 which has also been added by Amending Act 68 of 1976, reads as under :-
"23. Decree in proceedings.-(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 (7 of 13) [CMA-247/2017] obtained by force, fraud or undue influence, and" Sec.13B requires that the petition for divorce must be presented to the Court jointly by both the parties and there are three basic requirements to be fulfilled by the parties i.e. (i) they are living separately for a period of one year or more; (ii) they have not been able to live together and; (iii) they have mutually agreed that the marriage should be dissolved."
8. It is not disputed that the requirement of living separately for a period of one year or more is to be taken note of immediately preceding the presentation of the petition for divorce and the expression 'living separately' refers to not living like husband & wife. Although in the instant case in their joint application filed u/S.13B(1) of the Act,1955 on 27.07.2018 it was stated that they are living separately for five years preceding the presentation of the petition & also jointly stated in the statement recorded on 27.07.2018 about their living separately for five years. It further reveals from perusal of the record that it is agreed between the parties that appellant/husband will make a payment of Rs. 30 lacs as maintenance to the opposite party/wife, out of which a sum of Rs. 10 lacs were duly paid by the appellant-husband to the opposite party-wife by way of bank draft in the court on 27.07.2018 itself. The aforesaid bank draft was duly received by the aforesaid opposite party-wife and also made the endorsement of the same to the order sheet before the court itself.
9. The question before us is what will be the effect if one of the party to the petition for divorce unilaterally withdrew consent at later stage or the effect of the consent recorded at the first instance when the petition is jointly presented by the parties whether it was irrevocable. This issue has been examined by the Apex Court in the case of Smt. Sureshta Devi Vs. Om Prakash, (1991) 2 SCC 25 & observed in para-13 & 14 as under :-
"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 (9 of 13) [CMA-247/2017] 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 solemnised 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." What is significant in this provision is that there should also be mutual consent when they move the court with the 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 "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 (10 of 13) [CMA-247/2017] 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."
10. This view has been further confirmed by the Apex Court in the case of Smruti Pahariya Vs. Sanjay Pahariya, 2009(13) SCC 338 and observed in paras-38, 49 & 50 as under :-
"38. Therefore, it was made clear in Sureshta Devi (supra) that under Section 13B (2), the requirement is the 'motion of both the parties' and interpreting the same, the learned Judges made it clear that there should be mutual consent when they move the Court with a request to pass a decree of divorce and there should be consent also at the time when the Court is called upon to make an enquiry, if the petition is not withdrawn and then pass the final decree.
49. We are of the view that it is only on the continued mutual consent of the parties that 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 (11 of 13) [CMA-247/2017] presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above.
50. 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. In the facts of the case, the impugned decree was passed within about three weeks from the expiry of the mandatory period of six months without actually ascertaining the consent of the husband, the respondent herein."
11. A conjoint reading of sub-section(1) & (2) of Sec.13B of the Act,1955 clearly envisages the requirement that there should be mutual consent not only when they move the Court at the first stage with the request to pass a decree of divorce with mutual consent but also when the Court is called upon to make enquiry after expiry of the cooling period as required under sub-section (2) of Sec.13B of the Act,1955 and the consent recorded earlier is not withdrawn by either of the party and after recording satisfaction as envisaged u/S.23(1)(bb) the court can pass final decree but if either of the party withdrew consent even at the time of making enquiry the Court holds no jurisdiction to pass decree unless there is mutual consent which pre-supposes a free consent of the parties when the matter comes up for passing of the decree after expiry of the statutory period as envisaged u/S.13B(2) of the Act.
12. In our considered view, even after meeting out the requirements as envisaged under sub-section(1) of Sec.13B of the Act,1955, the consent has to subsist from the day one of filing joint application by the parties u/S.13B(1) of the Act,1955 till the decree of divorce is passed by the Court and it should be the valid subsisting consent when the parties are heard for second motion as envisaged u/S.13B (2) of the Act,1955 and if either of the party at that stage wants to withdraw consent and is not wiling to a divorce by mutual consent, the Court cannot pass a decree of divorce. This appears to be the reason in the instant case. When the matter came up for second motion for compliance of Sec.13B(2) of the Act,1955 the respondent-wife filed application duly supported with affidavit withdrawing her consent and was not willing for grant of decree of divorce by mutual consent. Taking note thereof, the joint application filed by the parties seeking decree of divorce u/S.13B was rejected by the Family Court under its order impugned dated 27.11.2020.
13. In view of the law laid down by the Supreme Court in the case of Smt. Sureshta Devi (Supra) a consent would be withdrawn at any point of time by any of the parties.
14. In view of the same, no relief could be granted to the appellant, in so far as the present appeal is concerned. Since a case for divorce has already been instituted by the appellant being Matrimonial Case No. 1161 of 2019 (Vinay Kumar Srivastava vs. Amita Srivastava), a direction is issued to the Principal Judge, Family Court, Allahabad to decide the same most expeditiously but not later than 6 months from the date of presentation of copy of this order.
Order Date :- 16.12.2020 Swati