Calcutta High Court
Pralay Kumar Bose vs Smt. Shyama Bose on 29 April, 1997
Equivalent citations: II(1998)DMC19
JUDGMENT S. Narayan, J.
1. This is an appeal by the husband against a decree of divorce on mutual consent passed on July 30,1987 by the District Judge, 24 Pgs. (S), Alipore in Matrimonial Suit No. 629 of 1986 in spite of a subsequent unwillingness expressed prior to the passing of a decree.
2. The age long concept of a Hindu Marriage being an unbreakable marital tie of the so-called life partners is almost outdated by now. The dissolution of marriage by a decree of divorce has been made possible within the ambit of law at the instance of either of the unwilling or aggrieved spouse but only on proof of certain established allegation being statutory ground as enumerated under Section 13 of the Hindu Marriage Act, 1955. The said Act did not earlier contemplate a situation when both the spouses (husband and wife) choose to go for dissolution of marriage by a decree of divorce on mutual consent but of the late, in the year 1976 this probability necessitated for an enactment and accordingly, Section 13B was introduced in the said Act by way of amendment being Marriage Laws (Amendment) Act, 1976. However in the wisdom of the legislature it was probably considered proper in keeping with the sanctity of solemnization of a Hindu Marriage that there should be abundant precaution against a possible haste and emotions and accordingly, certain checks and balances with time factor were provided in the relevant enactment itself. It was only on the fulfilment and compliance of certain formalities and on expiry of certain statutory periods provided that it was possible to grant a decree of divorce on mutual consent by a Court of Law. This would be gathered from the very plaint reading of the Section 13B of the Act which may be placed below :
Section 13B: Divorce by mutual consent-(1) Subject 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 solemnized before or after the commencement of the Marriage Laws (Amendment) 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.
(2) On the motion of both the parties may 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, of 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."
3. At this juncture, we may state the factual aspect of the instant case which can be, of course, but in a short compass. A joint petition dated September 24,1986 was filed by the parties praying for dissolution of marriage by a decree of divorce under Section 13B of the Hindu Marriage Act, 1955, which was registered as Matrimonial Suit No. 629 of 1986. It was contended therein that they being Hindus were married under Hindu rites on May 19, 1984 but they have been living separately since August 13,1985 for a continuous period of more than one year at their respective addresses and accordingly, they have mutually agreed that the marriage subsisting between them should be dissolved by a decree of divorce. Subsequently, on July 10,1987 the appellant-husband filed a petition before the Trial Judge that he was no more willing to have the marriage dissolved and accordingly, he would not consent to such dissolution of the marriage. This petition was, however, objected to by the respondent-wife, who put in a written objection before the Trial Court soon thereafter. The appellant subsequently filed another petition dated July 30,1987 asserting consideration of his petition expressing unwillingness in the matter of dissolution of marriage. The Trial Court, however, passed the impugned order dated July 30, 1987 granting a decree for dissolution of the marriage under Section 13B of the Hindu Marriage Act, 1955.
4. The lone question, which arose for consideration before the Trial Court, was whether a decree of divorce on the basis of a petition under Section 13B of the Act could be passed when the husband expressed his unwillingness for dissolution of marriage on mutual consent after one having filed a petition to that effect. In the opinion of the Trial Court, if a joint petition under Section 13B of the Act is filed by both the spouses out of their free will and if all other requirements of the sections are fulfilled, it was not open to one of the joint signatories to withdraw the consent. In support of the view taken as such, the Trial Court placed reliance on the decisions and also in .
5. It is not true that the legal proposition as formulated by the Trial Court was not at all a possible view inasmuch as there had been earlier decisions of some High Courts both ways, that is to say, supporting the view taken by the Trial Court and also otherwise. The divergent views of different High Courts have since been subjected to and settled by an authoritative decision of the Supreme Court in the case of Smt. Sureshtha Devi v. Om Prakash, . Since the decision of the Supreme Court as such squarely fits in with the facts of the instant case and it does most certainly lend credence for a decision in this appeal, I would prefer to quote the relevant paragraphs of the same as herein given below:
"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 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 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 13B. 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'."
6. We are sure that the legal proposition as propounded by the Supreme Court would lead us to answer the issue in negative, that to say no decree of divorce can be passed in the given facts and circumstances of the instant case. There was no escape for the respondent-wife to avoid the legal proposition as set forth above and, accordingly, no decree of divorce was possible to be granted under Section 13B of the Hindu Marriage Act for the simple reason that the law did require that the consent as given by either spouse at the time of filing a joint petition on a mutual agreement must continue to decree nisi and must subsist and continue till a decree of divorce is passed. The checks and balances as provided under Section 13B of the Act did not permit to act in haste or emotions and accordingly, certain period of waiting was provided before a decree was passed, and there was also a legal requirement of both the spouses to make a motion after the statutory period of waiting from the date of filing of the petition so as to ultimately obtain a decree of divorce. It was not sufficient merely that the spouses have been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed to dissolve the marriage at one point of time. Either of the spouses had an option to retract from the consent earlier given in the joint petition and to express his unwillingness to consent for mutual divorce, of course, it could be done only before a decree of divorce is actually passed.
7. In view of what has been noticed above the instant appeal was bound to succeed. The learned Counsel for the respondent has however, put much emphasis to consider the actual state of fact existing between the two spouses in some different perspective so as to maintain the decree of divorce already granted by the Trial Court. It was urged that as per the joint petition filed by the two spouses they started living separately only after about a year of the marriage and further, it has been noticed by this Court even after a lapse of about 10 years of this litigation that the effort of reconciliation has failed. He meant to submit that the marriage has irretrievably broken down and therefore, there was no purpose either compelling the two spouses to continue with the wedlock or dragging them to another sphere of litigation by instituting a suit afresh taking recourse of Section 13 of the Hindu Marriage Act. In this context, reliance was sought to be placed on the decision of the Supreme Court in the case of Smt. Kanchan Devi v. Pramod Kr. Mital & Anr., . In this case, th Supreme Court held that the marriage between the two spouses had irretrievably broken down and there was no possibility of reconciliation and therefore, in that view of the matter, it was directed in exercise of power under Article 142 of the Constitution of India that the marriage between the parties shall stand dissolved by a decree of divorce. On the very face of this decision, it is to be noticed that the decree of divorce was granted by the Supreme Court not within the purview of the Hindu Marriage Act, that is to say, not on any of the statutory grounds as provided under Section 13 or 13B of the Hindu Marriage Act, rather it was altogether on a different sphere as per extraordinary power conferred upon the Apex Court under Article 142 of the Constitution of India, which is most certainly not available to be taken recourse of by this Court or any other Court. If at all one is asked to place reliance on this authority that would be, at the best, just for the sake of taking an aid of the circumstance like that of the marriage having irretrievably broke down and there being no possibility of reconciliation so as to appreciate basically any of the statutory grounds raised and alleged by either of the spouse within the ambit of Section 13 of the Hindu Marriage Act. Since no such ground as that of the marriage having been irretrievably broke down has been provided as to be a possible ground for seeking a decree of divorce under the Hindu Marriage Act, 1955, we are sure that the respondent-wife cannot legally insist upon to sustain the decree passed in the instant case.
8. The decision of the Supreme Court in the case of Kanchan Devi (supra) was thus of no help to the respondent-wife so as to sustain the decree of divorce passed by the Trial Court in the instant case.
9. In the premise this appeal must succeed and accordingly, it is allowed. The decree of divorce, passed by the Trial Court is directed to be set aside. It may however be added here that the result of this appeal will not preclude the respondent-wife from taking legal recourse to obtain a decree of divorce on some statutory ground if available to her in accordance with law and if so advised. There shall, however, be no order as to costs.