IN T H E SUP R E M E C O U R T OF INDIA
CIVIL APPELL A T E JURISDICTIO N
CIVIL APPEAL NO.5952 OF 2009
(@ SPECIAL LEAVE PETITION (CIVIL)NO.14361 OF 2007)
Anil Kumar Jain … Appellant
Vs.
Maya Jain … Respondent
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. The short point for decision in this appeal is
whether a decree can be passed on a petition for mutual
divorce under Section 13-B of the Hindu Marriage Act,
1955, when one of the petitioners withdraws consent to such decree prior to the passing of such decree.
3. In the instant case, the appellant husband was
married to the respondent wife on 22nd June, 1985,
according to Hindu rites. On account of differences
between them, they took a decision to obtain a decree of
mutual divorce, which resulted in the filing of a joint
petition for divorce under Section 13-B of the Hindu
Marriage Act, 1955, (hereinafter referred to as ‘the
Act’) on 4th September, 2004, in the District Court at
Chhindwara. The same was registered as Civil Suit
No.167-A of 2004. As required under the provisions of
Section 13-B of the aforesaid Act, the learned Second
Additional District Judge, Chhindwara, fixed the date for
consideration of the petition after six months so as to
give the parties time to reconsider their decision. On
7th March, 2005, after the expiry of six months, the
learned Second Additional District Judge, Chhindwara,
took up the matter in the presence of both the parties
who were present in the Court. While the appellant
husband reiterated his earlier stand that a decree of
mutual divorce should be passed on account of the fact
that it was not possible for the parties to live
together, on behalf of the respondent wife it was
submitted that despite serious differences which had
arisen between them, she did not want the marriage ties
to be dissolved. On account of withdrawal of consent by
the respondent wife, the learned Judge dismissed the
joint petition under Section 13-B of the Act.
4. Aggrieved by the order dated 17th March, 2005, passed
by the learned Second Additional District Judge,
Chhindwara, the appellant filed an appeal under Section
28 of the Act in the High Court of Madhya Pradesh at
Jabalpur on 4th April, 2005, and the same was registered
as First Appeal no.323 of 2005. Even before the High
Court, on 12th March, 2007, the respondent wife expressed
her desire to live separately from the appellant, but she
did not want that a decree of dissolution of marriage be
passed. In that view of the matter, by his order dated
21st March, 2007, the learned Single Judge dismissed the
First Appeal. While dismissing the appeal, the learned
Single Judge took note of the decision of this Court in
similar circumstances in the case of Ashok Hurra v. Rupa
Bipin Zaveri [1997 (4) SCC 226], wherein this Court
granted a decree of mutual divorce by exercising its
extra-ordinary powers under Article 142 of the
Constitution of India. It was indicated that the High
Court did not have such powers and Section 13-B required
that the consent of the spouses on the basis of which the
petition under Section 13-B was presented, had to
continue till a decree of divorce was passed by mutual
consent. On that basis, the learned Single Judge of the
High Court, while dismissing the appeal, observed that
the appellant would be free to file a petition of divorce
in accordance with law, which would be decided on its own
merits by keeping in mind the special fact that the
parties were living separately for about five years and
the respondent wife was adamant about living apart from
her husband.
5. It is against the said order passed by the High Court
rejecting the appellant’s prayer for grant of mutual
divorce that the present appeal has been filed.
6. Appearing on behalf of the appellant husband, Mr.
Rohit Arya, learned Senior Advocate, contended that prior
to the filing of the petition for mutual divorce, the
parties had entered into a settlement which had been fully
acted upon by the appellant and that under the said
agreement valuable property rights had been transferred to
the respondent wife, which she was and is still enjoying.
Mr. Arya submitted that apart from the above, the attitude
of the respondent wife in openly declaring that she had no
intention to remain with the appellant, was sufficient to
indicate that the marriage had broken down irretrievably
and in similar circumstances this Court had invoked its
extra-ordinary powers under Article 142 of the
Constitution to grant a decree of divorce under Section
13-B of the Hindu Marriage Act, even though one of the
parties had withdrawn consent before the passing of the
final decree. Reference was made to the decision in Ashok
Hurra’s case(supra), which also involved a petition under
Section 13-B of the Act.
7. However, the facts of the said case were a little
different from those in the instant case. In the said
case, after six months from the date of filing of the
petition under Section 13-B, an application was filed by
the husband alone for a decree of divorce on the petition
under Section 13-B of the Act. Not only did the wife not
join in the said application, she made a separate
application for withdrawal of consent given by her for
mutual divorce after the expiry of 18 months from the date
of presentation of the divorce petition. At this
juncture, reference may be made to the provisions of
Section 13-B of the above Act and the same is extracted
hereinbelow :-
“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 made not
earlier than six months after the date of the
presentation of the petition referred to in subsection
(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.”
As will be clear from the above, sub-Section (1) of
Section 13-B is the enabling Section for presenting a
petition for dissolution of a marriage by a decree of
divorce by mutual consent. One of the grounds provided
is that the parties have been living separately for a
period of one year or more and that they have not been
able to live together, which is also the factual reality
in the instant case. Sub-Section (2) of Section 13-B,
however, provides the procedural steps that are required
to be taken once the petition for mutual divorce has been
filed and six months have expired from the date of
presentation of the petition before the Court. The
language is very specific in that it intends that on a
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 18
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, pass a decree of divorce
declaring the marriage to be dissolved with effect from
the date of the decree.
8. The question whether the consent of both the parties
given at the time of presentation of the petition for
mutual divorce under Section 13-B of the Act must
continue till the decree is finally passed, has been the
subject matter of several decisions of this Court. The
issue was raised in the case of Smt. Sureshta Devi vs. Om
Prakash [(1991) 2 SCC 25], wherein this Court held that
the consent given by the parties to the filing of a
petition for mutual divorce had to subsist till a decree
was passed on the petition and that in the event, either
of the parties withdrew the consent before passing of the
final decree, the petition under Section 13-B of the
Hindu Marriage Act would not survive and would have to be
dismissed.
9. Subsequently, however, in Ashok Hurra’s case (supra),
doubts were expressed by this Court with regard to certain
observations made in Sureshta Devi’s case (supra) and it
was felt that the same might require re-consideration in
an appropriate case. Basing its decision on the doctrine
of irretrievable break-down of marriage, the Hon’ble
Judges were of the view that no useful purpose would be
served in prolonging the agony of the parties to a
marriage which had broken down irretrievably and that the
curtain had to be rung down at some stage. It was further
observed that the court had to take a total and broad view
of the ground realities of the situation while dealing
with adjustment of human relationships. Their Lordships
placed reliance on the decision of this Court in
Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon (Capt.) &
Anr. [(1993) 2 SCC 6], in arriving at such a conclusion.
In the said case, although, indisputably consent for the
petition under Section 13-B of the Act was withdrawn
within a week from the date of the filing of the joint
petition, the Court, in exercise of its powers under
Article 142 of the Constitution, granted a decree of
divorce by mutual consent under Section 13-B of the Act
and dissolved the marriage between the parties in order to
meet the ends of justice, subject to certain conditions.
It was also made clear that the decree would take effect
only upon satisfaction of the conditions indicated
therein.
10. The decision in Ashok Hurra’s case (supra) to invoke
the power under Article 142 of the Constitution was,
thereafter, followed in several cases based upon the
doctrine of irretrievable break-down of marriage.
11. In keeping with the trend of thought which found
expression in Ashok Hurra’s case (supra) another question
arose before this Court in the case of Sandhya M.
Khandelwal vs. Manoj K. Khandelwal [(1998) 8 SCC 369],
which had come up before this Court by way of a transfer
petition seeking transfer of a matrimonial suit. During
the pendency of the transfer petition before this Court,
the parties settled their disputes, and, although, the
petition involved a proceeding under Section 13 of the
Hindu Marriage Act, 1955, keeping in mind the settlement
arrived at between the parties and also the interest of
the parties, this Court granted a decree of divorce by
treating the pending application as one under Section 13-B
of the said Act.
12. The views expressed in Ashok Hurra’s case (supra) were
echoed in Anita Sabharwal vs. Anil Sabharwal [(1997) 1 SCC
490] and in the case of Kiran vs. Sharad Dutt [(2000) 10
SCC 243]. In the former case decree for mutual divorce
was granted without waiting for the statutory period of
six months. In the latter case, after living separately
for many years and after 11 years of litigation involving
proceedings under Section 13 of the Hindu Marriage Act,
1955, the parties filed a joint application before this
Court for amending the divorce petition. Treating the
said divorce petition as one under Section 13-B of the
Act, this Court, by invoking its powers under Article 142
of the Constitution, granted a decree of mutual divorce at
the SLP stage.
13. Without referring to the decisions rendered by this
Court in Ashok Hurra’s case (supra) and in Kiran’s case
(supra), a three Judge Bench of this Court in the case of
Anjana Kishore vs. Puneet Kishore [(2002) 10 SCC 194],
while hearing a transfer petition, invoked its
jurisdiction under Article 142 of the Constitution, and
directed the parties to file a joint petition before the
Family Court at Bandra, Mumbai, under Section 13-B of the
Hindu Marriage Act, 1955, for grant of a decree of divorce
by mutual consent, along with a copy of the terms of
compromise arrived at between the parties. This Court
also directed that on such application being made, the
Family Court could dispense with the need of waiting for
six months as required by Sub-Section (2) of Section 13-B
of the Act and pass final orders on the petition within
such time as it deemed fit. This Court directed the
Presiding Judge to take appropriate steps looking to the
facts and circumstances of the case emerging from the
pleadings of the parties and to do complete justice in the
case.
14. Again in the case of Swati Verma (Smt.) vs. Rajan
Verma & Ors. [(2004) 1 SCC 123], which was a transfer
petition, the doctrine of irretrievable break-down of
marriage was invoked. Pursuant to a compromise arrived at
between the parties and leave granted by this Court, an
application was filed under Section 13-B of the Hindu
Marriage Act read with Article 142 of the Constitution and
having regard to the aforesaid doctrine, this Court, in
exercise of its powers vested under Article 142 of the
Constitution, allowed the application for divorce by
mutual consent filed in the said proceedings, in order to
give a quietus to all litigation pending between the
parties. The same procedure was adopted by this Court in
the case of Jimmy Sudarshan Purohit vs. Sudarshan Sharad
Purohit [(2005) 13 SCC 410], where upon a settlement
arrived at between the parties, a joint petition was filed
under Section 13-B of the Hindu Marriage Act and the same
was allowed in exercise of powers under Article 142 of the
Constitution.
15. The various decisions referred to above were
considered in some detail in the case of Sanghamitra Ghosh
vs. Kajal Kumar Ghosh [(2007) 2 SCC 220], and the view
taken in the various cases was reiterated based on the
doctrine of irretrievable break-down of marriage.
16. Although, the decision rendered in Sureshta Devi
(supra) was referred to in the decision rendered in Ashok
Hurra’s case (supra) and it was observed therein that the
said decision possibly required reconsideration in an
appropriate case, none of the other cases has dealt with
the question which arose in Sureshta Devi’s case (supra),
namely, whether in a proceeding under Section 13-B of the
Hindu Marriage Act, consent of the parties was required to
subsist till a final decree was passed on the petition.
In all the subsequent cases, the Supreme Court invoked its
extraordinary powers under Article 142 of the
Constitution of India in order to do complete justice to
the parties when faced with a situation where the
marriage-ties had completely broken and there was no
possibility whatsoever of the spouses coming together
again. In such a situation, this Court felt that it would
be a travesty of justice to continue with the marriage
ties. It may, however, be indicated that in some of the
High Courts, which do not possess the powers vested in the
Supreme Court under Article 142 of the Constitution, this
question had arisen and it was held in most of the cases
that despite the fact that the marriage had broken down
irretrievably, the same was not a ground for granting a
decree of divorce either under Section 13 or Section 13-B
of the Hindu Marriage Act, 1955.
17. In the ultimate analysis the aforesaid discussion
throws up two propositions. The first proposition is that
although irretrievable break-down of marriage is not one
of the grounds indicated whether under Sections 13 or 13-
B of the Hindu Marriage Act, 1955, for grant of divorce,
the said doctrine can be applied to a proceeding under
either of the said two provisions only where the
proceedings are before the Supreme Court. In exercise of
its extraordinary powers under Article 142 of the
Constitution the Supreme Court can grant relief to the
parties without even waiting for the statutory period of
six months stipulated in Section 13-B of the aforesaid
Act. This doctrine of irretrievable break-down of
marriage is not available even to the High Courts which
do not have powers similar to those exercised by the
Supreme Court under Article 142 of the Constitution.
Neither the civil courts nor even the High Courts can,
therefore, pass orders before the periods prescribed
under the relevant provisions of the Act or on grounds
not provided for in Section 13 and 13-B of the Hindu
Marriage Act, 1955.
18. The second proposition is that although the Supreme
Court can, in exercise of its extraordinary powers under
Article 142 of the Constitution, convert a proceeding
under Section 13 of the Hindu Marriage Act, 1955, into one
under Section 13-B and pass a decree for mutual divorce,
without waiting for the statutory period of six months,
none of the other Courts can exercise such powers. The
other Courts are not competent to pass a decree for mutual
divorce if one of the consenting parties withdraws his/her
consent before the decree is passed. Under the existing
laws, the consent given by the parties at the time of
filing of the joint petition for divorce by mutual consent
has to subsist till the second stage when the petition
comes up for orders and a decree for divorce is finally
passed and it is only the Supreme Court, which, in
exercise of its extraordinary powers under Article 142 of
the Constitution, can pass orders to do complete justice
to the parties.
19. The various decisions referred to above merely
indicate that the Supreme Court can in special
circumstances pass appropriate orders to do justice to the
parties in a given fact situation by invoking its powers
under Article 142 of the Constitution, but in normal
circumstances the provisions of the statute have to be
given effect to. The law as explained in Smt. Sureshta
Devi’s case (supra) still holds good, though with certain
variations as far as the Supreme Court is concerned and
that too in the light of Article 142 of the Constitution.
20. In the instant case, the respondent wife has made it
very clear that she will not live with the petitioner,
but, on the other hand, she is also not agreeable to a
mutual divorce. In ordinary circumstances, the
petitioner’s remedy would lie in filing a separate
petition before the Family Court under Section 13 of the
Hindu Marriage Act, 1955, on the grounds available, but in
the present case there are certain admitted facts which
attract the provisions of Section 13-B thereof. One of
the grounds available under Section 13-B is that the
couple have been living separately for one year or more
and that they have not been able to live together, which
is, in fact, the case as far as the parties to these
proceedings are concerned. In this case, the parties are
living separately for more than seven years. As part of
the agreement between the parties the appellant had
transferred valuable property rights in favour of the
respondent and it was after registration of such transfer
of property that she withdrew her consent for divorce.
She still continues to enjoy the property and insists on
living separately from the husband.
21. While, therefore, following the decision in Smt.
Sureshta Devi’s case we are of the view that this is a
fit case where we may exercise the powers vested in us
under Article 142 of the Constitution. The stand of the
respondent wife that she wants to live separately from her
husband but is not agreeable to a mutual divorce is not
acceptable, since living separately is one of the grounds
for grant of a mutual divorce and admittedly the parties
are living separately for more than seven years.
22. The appeal is, therefore, allowed. The impugned
judgment and order of the High Court is set aside and the
petition for grant of mutual divorce under Section 13-B of
the Hindu Marriage Act, 1955, is accepted. There will be a
decree of divorce on the basis of the joint petition filed
by the parties before the Second Additional District
Judge, Chhindwara, under Section 13-B of the Hindu
Marriage Act, 1955, in respect of the marriage solemnized
between the parties on 22nd June, 1985, according to Hindu
rites and customs and the said marriage shall stand
dissolved from the date of this judgment.
23. There will be no order as to costs.
……………………………………………J.
(ALTAMAS KABIR)
……………………………………………J.
(CYRIAC JOSEPH)
New Delhi
Dated: 01.09.2009.