Kerala High Court
Girija Kumari vs Vijayanandan on 23 February, 1995
Equivalent citations: AIR1995KER159, I(1995)DMC559, AIR 1995 KERALA 159, (1995) ILR(KER) 2 KER 570, (1995) 1 DMC 559, (1995) 1 KER LJ 430, (1995) 1 KER LT 521, (1995) MATLR 248
Bench: K.T. Thomas, N. Dhinakar
JUDGMENT Dhinakar, J.
1. The two questions which are inter-linked, on the facts of the case (1) whether this appeal is maintainable under Section 19 of the Family Courts Act, 1984 and (2) whether the decree for divorce passed under Section 13-B of the Hindu Marriage Act is correct can be disposed of together.
2. The appellant, and her husband, the respondent in the above M. F. A., have filed a petition before the Family Court for a decree of divorce under Section 13-B of the Hindu Marriage Act. After expiry of the period of six months on the motion of the husband (the respondent herein), the Family Court took up the matter and examined him as P. W. 1. The appellant was absent. Nor did she withdraw the petition, After examining the respondent, the Family Court held that as the appellant did not turn up to withdraw the petition filed under Section 13-B of the. Hindu Marriage Act the appellant is a consenting party to the divorce and accordingly passed a decree for divorce.
3. The respondent in this appeal raised a contention that the appeal itself is not maintainable under Section 19(1) of the Family Courts Act in as much as the decree for divorce was passed on the consent of both the parties. If we hold that the decree as passed by the Family Court is a consent decree then there can be no doubt that this appeal is not maintainable. But if the facts indicate that the decree is not a consent decree then this appeal is certainly maintainable and the decree for divorce so passed by the Family Court has also to be set aside as it was an ex parte one without giving an opportunity to the appellant herein.
4. Section 13-B reads as follows : "13-B 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 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 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 above provisions of the Hindu Marriage Act indicate that for the court to pass a consent decree certain essential requirements are to be fulfilled. Under Sub-section (1) of Section 13-B a petition for dissolution of marriage by a decree of divorce shall be presented before a Family Court by both the parties to a marriage together 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. So a mutual agreement to dissolve the marriage and filing of a petition together are two of the essential ingredients under Section 13B(l) of the Act. The question is whether a mere filing of a petition together is sufficient for the Family Court to pass a decree of divorce after the expiry of six months without a subsequent act of both the parties as contemplated under Sub-section (2) of Section 13B. Sub-section (2) of Section 13-B of the Hindu Marriage Act contemplates that after the expiry of six months from the date of presentation of the petition referred to in Sub-section (1) and not later than eighteen months after the said date, on the motion made by both the parties the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. It is clear from the combined reading of both Sub-sections (1) and (2) of Section 13-B that a mere presentation of a petition by both the parties together for a decree of divorce is not sufficient. It is further interdicted that for a decree of divorce to be passed both the parties shall also move the Family Court after the expiry of six months and not later than eighteen months after the said date of presentation, if in the meantime the petition originally filed under Sub-section (1) of Section 13-B is not withdrawn. A mere filing of a petition by both the parties together is not sufficient and if one of the parties did not join in moving the court as contemplated under Sub-section (2) of Section 13-B then a decree of divorce passed by the Family Court cannot be termed to be a consent decree of divorce.
5. The question whether one of the parties who originally joined the other party in filing a petition under Section 13-B(1) can by implication withdraw the consent by not moving the Family Court under Section 13-B(2) of the Act was also considered by a learned single Judge of this Court in Anirudhan v. Prasanna Kumari (1989) 1 Ker LT 42. A learned single Judge after elaborately considering the law on the subject held as follows :
"There is nothing in Section. 13-B to indicate that once a party signifies his consent, he will be pinned down to it whatever be his mental disinclination subsequntly. Such rigidity, if attached to the spouses, would be anthithesis to the concept of mutuality enshrined in the provision. On the other hand, Sub-section (2) makes it clear that it is open to the parties to withdraw the petition at any time before the expiry of eighteen months' period. This intention of the Parliament is evidenced by the words used in the sub-section ("...... if the petition is not withdrawn in the meantime......'''). While enacting Section 13-B the legislature intended that the mutuality of the consent must continue to subsist until the expiry of the said period of eighteen months or at least until the time of making the motion mentioned in the sub-section. There can be very many reasons which may persuade the parties, or at least one of them, to resile from the consent once signified. The mere fact that he or she has once agreed to have the marriage dissolved does not mean that he is bound to cling or stick to it whatever be the subsequent situation."
With great respect we are in agreement with the said view of the learned single Judge. The Supreme Court while considering a similar question in Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 took the view that filing of a petition with mutual consent does not authorise the court to make a decree for divorce as there is a period of waiting from 6 to 18 months. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition and the spouse may not be a party to the joint motion under Sub-section (2) of Section 13-B as there is nothing in the section which prevents such a course. The Supreme Court further held that at the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties, and they know that they have to take a further step to snap marital ties. According to the Supreme Court, what is significant in the provision is that there should also be mutual consent when they move the court under Sub-section (2) of Section 13B with a request to pass a decree of divorce and in the absence of such a mutual consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. Such a decree, in the view of the Supreme Court, is not to be regarded as a decree by mutual consent.
6. Our attention was brought to a judgment of a Division Bench of the Karnataka High Court in Smt. Roopa Reddy v. Prabhakar Reddy, AIR 1994 Kant 12 and was argued that the decree for divorce passed under Sub-section (2) of Section 13-B by the Family Court in this case can be held to be correct. In our view the said judgment of the Karnataka High Court is not on the point which we have discussed earlier. The question therein was whether the minimum period of six months mentioned in Sub-section (2) of Section 13-B is mandatory or directory and the Karnataka High Court held that it is only directory in nature and that the legislature has never intended the period of six months mentioned in the Act shall be strictly complied with. Hence the said decision of the Division Bench of the Karnataka High Court does not help the cause of the respondent herein.
7. In view of the discussion made above we hold that the judgment of the Family Court granting a decree of divorce under Section 13-B is not correct in law and it has to be necessarily set aside. As the judgment of the Family Court is not in accordance with law we set it aside and this M. F. A. is disposed of accordingly.