Bench:
D Gupta & L S Panta
Issue:
Whether a party to a petition for divorce by mutual consent under Section 13B of HMA, 1995 can unilaterally withdraw the consent? or whether the consent once given is irrevocable?
Facts:
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The appellant is the wife of the respondent. They married on Nov.21, 1968 and lived together for 6-7 months. Thereafter they did not except from Dec.9, 1984 to Jan.7, 1985. It was pursuant to an order of the court, but they did not live like husband and wife even in that period.
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On Jan.8, 1985 both of them went to Hamirpur. The wife was accompanied by her counsel. After about an hour’s discussion, they moved a petition under Section 13B of HMA for divorce by mutual consent in the District Court of Hamirpur. Next day the court recorded their statements and left the matter their.
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On Jan.15, 1985 the wife filed an appeal stating that her statement was obtained under pressure and threat of the husband and wasn’t even allowed to see or meet her relations for consultation before filing the divorce petition. Nor were they permitted to accompany her in the Court; she would not be party to the petition and prayed for its dismissal.
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The District Court made certain orders which were taken up in appeal before the High Court and the High Court remanded the matter to the District Judge for fresh disposal.
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The District Judge ultimately dismissed the petition for divorce; but upon appeal the HC reversed the order of the District Judge and granted decree for dissolution of marriage by mutual consent.
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The HC observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal would not taker away the jurisdiction of the court.The HC also recorded a finding that the wife gave her consent freely, without any force, fraud or undue influence and was therefore bound by the consent.
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An appeal (present appeal) was filed in Himachal Pradesh High Court for the same.
Judgment:
Before declaring the Judgment the Court very carefully explained the provisions of Section 13B and Section 23(1)(bb) of HMA and the sub-sections under it. The Court also explained the Section 28 of the Special Marriage Act as Section 13B is in pari materia with the said section and explained the meaning of wors ‘living separately’. The Court discussed various earlier judgments passed by several High Courts of India as well and agreed with the view and interpretation of a few. Lastly, the Court allowed the appeal and set aside the decree for dissolution of the marriage.
