Hindu Marriage Act, 1955 - Case law-section 13B - Ashok Hurra vs Rupa Ashok Hurrarupa Bipin Zaveri.
Bench: M.M. Punchhi, K.S. Paripoornan
Facts:
- The marriage between the applicant and the defendant was concluded on 3 December 1970. There were differences between them and the wife left the matrimonial home.
- A lawsuit for a joint divorce proceedings was filed in accordance with Section 13B of the Hindu Marriage Act of 1955.
- After that, the husband filed an application praying for passing a decree of divorce. However, the woman filed an application for withdrawal of consent to divorce.
- The husband claims that the wife does not have the right under article 13B of the law to withdraw consent after 18 months.
Issues:
Whether a decision be made in favour of divorce if one of the parties withdraws the consent before passing of the same?
Contentions of the Appellant:
- The applicant filed for divorce from the wife based on unchastity of the wife, and claiming large number of pornographic relations which she is alleged to have with her father and other persons.
- Petition was also filed under Sec.13(1) alleging that the wife has for a continuous period of not less than two years immediately preceding the presentation of the petition deserted the husband.
Contentions of the Respondent:
- The defendant/wife claimed that on 18 August 1985 the applicant / husband remarried to Sonya and a boy named Prasad was born in a marriage.
- The wife stated that the relationship between the accused and Sonya is illegal, that the child is illegal, and that the husband should be restrained from calling Sonya his wife.
Background:
After hearing the views of the parties, the honourable city civil judge (the trial court) dismissed the petition for divorce by mutual agreement. In an appeal filed by the husband, a learned single judge of the Gujarat High Court, examined all relevant facts and laws. The following conclusions were made: Given that the marriage between the husband and wife finally failed, and reunion is no longer possible, the honourable judge overturned the decision made by the trial court on October 8, 24, 1986 and passed the decree of dissolution of marriage from the date of the petition.
Judgment:
- Court ruled that the case of Sureshta Devi Vs. Om Prakash is apparently too broad and does not logically accord with Section 13B(2) of the Act that lays down that the mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months
- It is very important to assist those who come to court with clean hands. The court ruled that the woman did not legally withdraw her consent within 18 months and that the consent was not withdrawn due to deficiencies related to fraud, unfair consequences or errors.
- The court found that there was no possibility of reconciliation between the parties. The court decided to provide the defendant with adequate protection or security so that she could live properly. The court ruled that the husband had to pay Rupees 10 lakhs and legal costs as a prerequisite for the decree to take effect.
- Decree of divorce for dissolution of marriage by mutual consent passed. A decree for divorce can be passed even if one of the parties withdraws consent before such passing.
