Hindu Marriage Act, 1955 - Case law - Section 13B - Sureshta Devivs. Om Prakash
Bench: Justice K. Jagannatha Shetty and Justice S.C. Agrawal.
Facts:
- Marriage between the parties was solemnized in 1968 and they lived together for six to eight months after which Sureshta Devi, herein the Appellant left the matrimonial home.
- After 17 years into the marriage, the parties moved a petition under Section 13Bof the Hindu Marriage Act (hereinafter referred to as the “Act”) for divorce by mutual consent in the District Court at Hamirpur and their statements were recorded.
- A week later, the Appellant prayed for the dismissal of the said petition on the ground that her consent to file the petition for divorce was procured under threat and force by Om Prakash, herein the Respondent.
Issue:
Whether a party to a petition filed under Section 13B of Act has power to unilaterally withdraw the consent after filing of the petition or is it irrevocable once given?
Contentions of the Appellant:
- The consent of the Appellant was obtained under pressure and threatto file the petition under Section 13B of the Act.
- The Respondent did not permit her to consult her relatives before filing for divorce. Also, they were not allowed to accompany her to the Court for the proceedings.
Background:
Upon dismissal of the petition by the District Judge, an appeal was filed to the High Court which reversed the order passed by the District Judge. Aggrieved by the decree for dissolution of the marriage by mutual consent under Section 13B passed by the High Court, the Appellant approached the Supreme Court which pronounced its judgment below.
Judgment:
In the present case, the Court comprehensively deliberated upon essential features of Section 13B and Section 23(1)(bb) of the Act and ruled that for a decree of divorce by mutual consent, there shall be mutual consent at the time of filing of such petition. The Court may make inquiry into the bonafides and consent of the parties and on satisfaction of existence of mutual consent, it shall have jurisdiction to pass the decree for divorce under Section 13B of the Act.
The Apex Court while rejecting the findings of the High Court and setting aside the decree for dissolution of the marriage, held that Section 13B does not prevent a party to change their mind during the transitional period provided therein and for a Court to pass a decree of divorce by mutual consent under Section 13B, the consent of both parties should continue till the decree is passed. Thus, “It is open to one of the parties at any time before the decree is passed to withdraw the consent”, otherwise, the whole idea of mutuality and consent for divorce will be negated.
