Bombay High Court
Smt. Rukhmini D/O Sharad Bobde vs Mr. Kumar Shashank S/O Late Mr. Narendra ... on 21 September, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:13969-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL APPLICATION NO. 1140/2023 IN FAMILY COURT AP-
PEAL STAMP NO. 15642/2023
Smt. Rukhmini d/o Sharad Bobde V/s Mr. Kumar Shashank s/o Late Mr. Narendra Kumar
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. Sunil Manohar, Senior Counsel a/b Mr. Rohit R. Chougule with Ms.
Soumye Priyadarshani, counsel for petitioner.
CORAM: AVINASH G. GHAROTE &
URMILA JOSHI-PHALKE, JJ
DATED : 21/09/2023.
1. Heard Mr. Sunil Manohar, learned Senior
Counsel for the petitioner. The petition questions the
order dated 4.5.2023 passed by the learned Judge Family
Court No.3, Nagpur in Petition No. F-313/2022 an
application under Section 13-B of the Hindu Marriage Act,
1955 for divorce by mutual consent, whereby on account
of withdrawal of consent by the present respondent, the
application came to be dismissed by the impugned order, passed below Exh.1, which is consequent to the common order below Exh. 13 and Exh. 23 (Page-85), whereby the application at Exh. 13 for passing a decree in terms of the mutual compromise has been rejected, in view of the application at Exh. 23 (Pg79), which indicates that the respondent has sought dismissal of the petition under Section 13-B(1) of the Hindu Marriage Act, 1955 on account of withdrawal of the consent, which has been disposed off.
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2. Mr. Sunil Manohar, learned Senior Counsel for the petitioner submits that since the marriage had been irretrievably broken down and the parties had already agreed to dissolve it by mutual consent, the petition under Section 13-B of the Hindu Marriage Act, 1955 came to be filed (Page 15), in which, on account of irreconcilable differences, the parties had agreed to dissolve the matrimony. It is contended that once that was done, the basic consent of the respondent for severance of the matrimony stood manifest on record and therefore, it was not permissible for the respondent to withdraw that consent on the ground that the respondent wanted a larger share in the property. It is also contended that this position is manifested from the Pursis at Exh. 21 dated 6.4.23 (pg-77) by which the parties indicated that they were intending to decide the terms of the settlement amicably.
3. He further invites our attention to the revised proposal submitted by the petitioner on 3.5.2023 (Page-
78) which indicates that the respondent did not resile from the consent for dissolving the marriage, rather according to him this, clearly indicated the intention of the respondent to have a greater share in the matrimonial property. This would indicate that there is no withdrawal of the consent at all for dissolving the matrimony and therefore, it was not permissible for the learned Family Court to reject the application below Exh.13 for passing a decree of divorce by mutual consent or for that matter rkn 3 5cao1140.2023.odt dismissing the petition under Section 13-B(1) of the Hindu Marriage Act, 1955.
4. It is further contended that withdrawal could only be for a genuine reason and not for any malafide, revengeful or collateral purpose as that cannot be said to be the intent and scope of Section 13-B(1) of the Hindu Marriage Act, which provides a period of 6 months, after which the final decree could be passed upon presentation of the petition.
5. Further relying upon Order-XXIII Rule-3 of the Code of Civil Procedure, it is contended that the reason for withdrawal of the consent could only be for the reason that such consent was obtained by fraud or was contrary to law, which according to him is not the position to be extant in the present matter.
6. In order to buttress this contention, he placed reliance upon Tukaram Mahadu Tandel V/s Ramchandra Mahadu Tandel and others [1925 ILR 672] which goes on to hold that consent when once given resulting in a settlement, cannot be permitted to be withdrawn by withdrawing the suit, in which the consent for settlement was given, as the right to withdraw the suit is not absolute and has to be controlled by right existing in any other parties to the suit.
7. It is also contended that the cooling period as contemplated under Section 13-B (1) has to be for a genuine case where there may be a change of heart, and not with an intention to hold the other side for ransom on rkn 4 5cao1140.2023.odt account of any unreasonable demand for division of the property in spite of the fact, that the consent for the dissolution of the marriage continues to stand. It is therefore, contended that withdrawal of the consent is not permissible.
8. In reference to Smt Sureshta Devi V/s Om Prakesh [(1991) 2 SCC 25], it is contended that once the consent is demonstrable on record to continue to exist vis-a-vis the intention to dissolve the marriage any subsequent withdrawal of the consent for a collateral purpose of securing a larger share in the matrimonial properties cannot be permitted to come in the way of the consent to dissolve the marriage.
9. In reference to Smruti Pahariya V/s Sanjay Pahariya [(2009) 13 SCC 338], it is contended that since the marriage was dead, both emotionally and practically, and there was no chance at all for the same being revived, the withdrawal of consent for the aforesaid reason would not be permissible.
10. He further invited our attentions the case of Ashok Hurra V/s Rupa Bipin Zaveri [(1997) 4 SCC 226], to contend that Smt Sureshta Devi (supra) was felt to have laid down a very wide observation and would require consideration in an appropriate case.
11. Placing reliance upon the Principal Judge, Family Court, Nagpur V/s Nil [2008 (5) Mh.L.J.222] (para-17), it is contended that withdrawal of the consent could only be for appropriate reasons and rkn 5 5cao1140.2023.odt in the factual position in the present matter, it is contended that the withdrawal cannot be permitted, since there is no withdrawal of consent for the dissolution of the marriage, but the withdrawal is for an oblique purpose, which is malafide as is indicated from the proposal dated 3.5.2023 (page79) for extracting a larger share in the mat- rimonial properties.
12. Learned Senior Counsel for the petitioner, therefore, contends that the impugned orders in the above circumstances are required to be set aside and the withdrawal being malafide is required to be termed so and decree under Section 13-B of the Hindu Marriage Act, 1955 needs to be passed.
13. The provision of Section 13-B of the Hindu Marriage Act, 1955 provide for divorcee by mutual consent. Sub-Section (1) of Section 13-B provides for the requirement of living separately for one year or more and the fact that they have not been able to live together and have mutually agreed that the marriage should be dissolved.
Sub-Section (2) of Section 13-B mandates that after the presentation of the petition referred to in sub-section (1) consequent to the passage of a period of six months, if the petition is not withdrawn, in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that the averments in the petition are true, pass a decree of divorce declaring the marriage should be rkn 6 5cao1140.2023.odt dissolved with effect from the date of the decree. The language of Sub-Section 2 of Section 13-B would indicate that the consent which is required has to subsist throughout the period as contemplated in Section 13-B (2) of the Hindu Marriage Act, 1955 and it is only in case where it is so found, that the consequent action of dissolving of the marriage can take place.
14. No doubt true, as is reflected from the fact in the present case, that the motion for withdrawal of consent filed by the respondent on 31.10.2022 and so also the language of the Pursis at Exh. 21 dated 6.4.2023, and the proposal dated 3.5.2023, would prima facie indicate that the consent for dissolving the marriage subsists and the withdrawal is only for collateral purpose of securing a larger share of the so called matrimonial property, as these documents do not indicate any intention of the parties and specifically of the respondent to resume cohabitation, which is also the position as is reflected from the averments in Exh. 23(Page-79) filed by the respondent, however, plea of irretrievable break down of the marriage is one which is not available to the present appellant under the provisions of Section 13-B (1) of the the Hindu Marriage Act, 1955, in light of withdrawal of the consent by the respondent.
15. The fact that the consent as contemplated in Section 13-B(1) has to subsist throughout, even till the time the marriage is dissolved by an order of the Court is clearly spelt out from what has been held in Smt Sureshta Devi (Supra) in which it has been held that rkn 7 5cao1140.2023.odt the mutual consent for the purpose of Section 13-B should continue till the divorce decree is passed. Though the view taken in Smt Sureshta Devi (Supra) has been doubted in Ashok Hurra (supra) in Para-16, however in Smruti Pahariya (supra), it has been held that the earlier view taken in Ashok Hurra Vs Rupa Bipin Za- veri (1997) 4 SCC 226 was considered by larger bench of the Hon'ble Apex Court in Rupa Ashok Khurra V/s Ashok Khurra [2002 (4) SCC 388], in which no doubt was expressed by the larger bench on the principles laid down in Smt Sureshta Devi (Supra), considering which the view expounded in Smt Sureshta Devi (Supra) would continue to hold the field and the consent would be necessary to be required to continue throughout the period from the date of filing of the application till the decree was passed.
16. Though reliance has been placed upon Tukararm Mahadu Tandel (supra), to contend that the suit could not have been withdrawn on account of the settlement between the parties as was evinced by Exh. 18 therein, it is necessary to note that Tukararm Mahadu Tandel (supra) was a case of partition of the joint family proprieties, in which situation it was held that every party to the suit, stood in the capacity of plaintiff, as each would be entitled to a share on account of partition being decreed by the Court. Tukararm Mahadu Tandel(supra), therefore is of no assistance to the argument canvassed.
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17. Principal Judge Family Court, Nagpur (supra) though holds that the parties can withdraw the consent for appropriate reasons, however, it does not hold that the consent should not subsist even at the stage of passing a decree under Section 13-B (2) of the Hindu Marriage Act, 1955.
18. No doubt that the facts would indicate an irretrievable break down of the marriage and the intention of the parties to dissolve the marriage as it is no longer possible for them to cohabit together. That however, cannot be a ground for passing a decree under Section 13-B of the Hindu Marriage Act, 1955 on account of the withdrawal of the consent by the respondent. Any such decree on account of break down of the marriage on the above ground may be permissible for the Hon'ble Apex Court in exercise of the power under Article 142 of the Constitution. However, since this Court does not possess those powers, no such decree can be passed.
19. It may not be permissible for this Court to go into the reasons for withdrawal of the consent by the respondent, even if the record would indicate that there is absence of willingness to cohabit, to resume the matrimony on account of irretrievable breakdown of the marriage.
20. In that view of the matter, we do not see any infirmity in the impugned orders passed by the learned Family Court. Considering the position as discussed above, the appeal is dismissed at the threshold itself.
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21. Needless to say, this would not come in the way of the parties to take appropriate proceedings for dissolution of the marriage on the grounds otherwise permissible in the law.
JUDGE JUDGE
Signed by: Mr. R.K. NANDURKAR
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Designation: PA To Honourable Judge
Date: 21/09/2023 21:42:13