WIFE WITHDRAWAL FROM MUTUAL CONSENT DIVORCE U/S 13B HMA IS NOT CONSIDER GENUINE WHEN THERE IS NO INTENT TO JOIN BACK AND HUSBAND HAVE ACTED ON THE MUTUAL AGREEMENT BY PAYING PERMANENT ALIMONY. COURTS CAN GRANT DECREE OF DIVORCE BESIDES WITHDRAWAL
 |
| Section 13B Mutual Divorce |
As per judgment of Rajasthan High Court,
the Court first taken the guidelines from the Supreme Court Judgment on the
provisions of Section 13B and secondly then came to conclusion when the Court
can Grant the Decree of Divorce even when one party withdraw the consent of
obtaining divorce unilaterally :
"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 , (68 of 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said date, if the petition is not withdrawn in the meantime, the court shall,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 Hon'ble Supreme Court in Smt.
Sureshta Devi vs. Om Prakash - (1991) 2 SCC 25 analyzed the provisions
of Section 13B of the Act by holding that Section 13B is in
pari materia with Section 28 of
the Special Marriage Act, 1954 and three ingredients are necessary for
operating Section 13B of the Act. They are; (i) They have been living
separately for a period of one year or more; (ii) They have not been able to
live together; and (iii) They have been mutually agreed that the marriage
should be dissolved.
Further
analyzing the provisions, the Apex Court emphasized that `living separately'
connotes that parties have not been living like husband and wife irrespective
of their place of residence. They may be living separately under the same roof
and on the other hand they could be living as husband and wife even though
living at different houses. Therefore, maintenance of conjugal relationship and
cohabitation as husband and wife was considered essential while construing the
words, "living separately" in these provisions.
Relevant
para 7 to 10 of the said judgment are reproduced hereunder for ready reference:-
"7. Section 13B is in
pari materia with Section 28 of the Special Marriage Act, 1954.
Sub-section (1) of Section 13B requires that the petition for
divorce by mutual consent must be presented to the Court jointly by both the
parties. Similarly,sub-section (2) providing for the motion before the Court
for hearing of the petition should also be by both the parties.
8. There are three other requirements
in sub- section (1). They are:
(i) They have been living separately
for a period of one year,
(ii) They have not been able to live
together, and
(iii) They have mutually agreed that
marriage should be dissolved.
9.
The 'living separately' for a period of one year should be immediately
preceding the presentation of the petition. It is necessary that immediately
preceding the presentation of petition, the parties must have been living
separately. The expression 'living separately', connotes to our mind not living
like husband and wife. It has no reference to the place of living. The parties
may live under the same roof by force of circumstances, and yet they may not be
living as husband and wife. The parties may be living in different houses and
yet they could live as husband and wife. What seems to be necessary is that
they have no desire to perform marital obligations and with that attitude they
have been living separately for a period of one year immediately preceding the
presentation of the petition. The second requirement that they 'have not been
able to live together' seems to indicate the concept of broken down marriage
and it would not be possible to reconcile themselves.The third requirement is
that they have mutually agreed that the marriage should be dissolved.
10.
Under sub-section (2) the parties are required to make a joint motion not
earlier than six months after the date of presentation of the petition and not
later than 18 months after the said date. This motion enables the Court to
proceed with the case in order to satisfy itself about the genuineness of the
averments in the petition and also to find out whether the consent was not
obtained by force, fraud or undue influence. The Court may make such inquiry as
it thinks fit including the hearing or examination of the parties for the
purpose of satisfying itself whether the averments in the petition are true. If
the Court is satisfied that the consent of parties was not obtained by force,
fraud or undue influence and they have mutually agreed that the marriage should
be dissolved, it must pass a decree of divorce."
26.
The ratio of the judgment in Smt. Sureshta Devi vs. Om Prakash(supra) was
that the consent of the parties to dissolve the marriage by mutual agreement in
the backdrop of their living separately till actual decree of divorce was
passed was rendered by the Apex Court in the said judgment and the court held
that mere filing of petition with mutual consent does not authorise the Court
to make a decree for divorce. There is a period of waiting of 6 to 18 months.
This interregnum was obviously intended to give time and opportunity to the parties
to reflect on their move and seek advice from their relatives and friends. In
this transitional period one of the parties may have a second thought and
change its mind not to proceed with the petition. The spouse may not be a party
to joint motion under sub-section (2) of Section 13B and there is
nothing in this Section 13B, which prevents such a course. The section
does not provide that if there a change of mind, it should be by one party
alone but by both.
Para
13 and 14 of the judgment are also of great importance and, therefore, they are
quoted below in extenso:-
"13. From the analysis of the
Section, it will be apparent that the filing of the petition with mutual
consent does not authorise the court to make a decree for divorce. There is a
period of waiting from 6 to 18 months. This interregnum was obviously intended
to give time and opportunity to the parties to reflect on their move and seek
advice from relations and friends. In this transitional period one of the
parties may have a second thought and change the mind not to proceed with the
petition. The spouse may not be party to the joint motion under sub-section
(2). There is nothing in the Section which prevents such course.
The
Section does not provide that if there is a change of mind it should not be by
one party alone, but by both. The High Courts of Bombay and Delhi have
proceeded on the ground that the crucial time for giving mutual consent for
divorce is the time of filing the petition and not the time when they
subsequently move for divorce decree. This approach appears to be untenable. At
the time of the petition by mutual consent, the parties are not unaware that
their petition does not by itself snap marital ties. They know that they have
to take a further step to snap maritalties. Sub-section (2) of Section 13B is clear on this point. It provides that "onthe motion of both
the parties .... if the petition is not withdrawn in the meantime, the Court
shall pass a decree of divorce What is significant in this provision is that
there should also be mutual consent when they move the court with a request to
pass a decree of divorce. Secondly, the Court shall be satisfied about the
bonafides and the consent of the parties. If there is no mutual consent at the
time of the enquiry, the court gets no jurisdiction to make a decree for
divorce. If the view is otherwise, the Court could make an enquiry and pass a
divorce decree even at the instance of one of the parties and against the
consent of the other. Such a decree cannot be regarded as decree by mutual consent.
14.
Sub-section (2) requires the Court to hear the parties which means both the
parties. If one of the parties at that stage says that I have withdrawn my
consent", or I am not a willing party to the divorce", the Court
cannot pass a decree of divorce by mutual consent. If the Court is held to have
the power to make a decree solely based on the initial petition, it negates the
whole idea of mutuality and consent for divorce. Mutual consent to the divorce
is a sine qua non for passing a decree for divorce under Section 13B.
Mutual consent should continue till the divorce decree is passed. It is a
positive requirement for the court to pass a decree of divorce. "The
consent must continue to decree nisi and must be valid subsisting consent when
the case is heard".
27.
Variety of complex factual situations do arise in matrimonial relationship more
so in strained one, depending upon the multiple factors like age and family
background of the parties, their qualifications, their occupation, business or
profession, their place of residence, their bent of mind, psychology, presence
of children out of the wedlock, behaviour of their family members, efforts by
them for reconciliation etc. and, therefore, no straitjacket formula can be
applied in such circumstances. Therefore, in a subsequent case of Anil
Kumar Jain vs. Maya Jain - (2009) 10 SCC 415, the Hon'ble Supreme Court
modified the ratio of Smt. Smt. Sureshta Devi vs. Om Prakash(supra) and
allowed the divorce by mutual consent under Section 13B of the
Act when even though the wife insisted upon living separately from the husband
despite previous agreement to obtain such divorce by mutual consent but did not
give such consent for decree of divorce, the two judges bench of the Hon'ble
Supreme Court held as under:-
"Section 13B(1) is the
enabling section for presenting a petition for dissolution of 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. Section 13B(2), 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 consent given by the parties to the
filing of a petition for mutual divorce has to subsist till a decree is passed
on the petition and in the event either of the parties withdraw the consent
before passing of the final decree, the petition under Section 13B would
not survive and would have to be dismissed. This legal position as explained in
Sureshta Devi, (1991) 2 SCC 25 still holds good, though with certain variations
as far as the Supreme Court is concerned and that too in the light of Article
142of the Constitution."
28.
Invoking their powers under Section 142 of the Constitution, their
Lordships further held that even though in the present case respondent wife has
made it very clear that she will not live with the petitioner husband but on
the other hand she is also not agreeable to mutual divorce, the Court held that
as a part of agreement between the parties, the appellant husband had
transferred valuable property rights in favour of respondent wife and it was
after registration of property that she withdrew her consent, while she
continued to enjoy said property but insisted on living separately from the
husband, the Court held that it was a fit case where Supreme Court may exercise
powers under Article 142 of the Constitution and grant divorce by
mutual consent under Section 13B of the Act by inferring the
continued consent on the part of respondent wife. However, putting the word of
caution, the Supreme Court said that these powers under Article 142 of
the Constitution only vested with the Supreme Court and no lower court
including High Court had such power to pass a decree for mutual divorce, if one
of the consenting party withdraws his/her consent before decree is passed on
the doctrine of irretrievable breakdown of the marriage. Relevant extract from
the judgment in para 27 to 35, as appearing in the Head Notes of SCC including
the reference to various case laws, is reproduced here under for ready
reference:-
"In several 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 back together again. In such a
situation, the Supreme Court felt that it would be a travesty of justice to
continue with the marriage ties. Although, irretrievable breakdown of marriage
is not one of the grounds indicated either under Section 13 or Section 13B 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 Article142 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 13B.
Although the Supreme Court can, in exercise of its extraordinary powers
under Article 142of the Constitution, convert a proceeding under Section
13 into one under Section 13B 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. 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 Section 13B.
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,on
the grounds available, but in the present case there are certain admitted facts
which attract Section 13B. 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. 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.
Therefore,
while following the decision in the case of Sureshta Devi case, it must be held
that this is a fit case where the Supreme Court may exercise the power
under Article 142 of the Constitution.
Sureshta
Devi v. Om Prakash, (1991) 2 SCC 25 : 1991 SCC (Cri) 292, followed.
Accordingly,
the petition for grant of mutual divorce under Section 13B is
accepted."
[Read 498a Quash Judgments]
[Read 498a Quash Judgments]
2. The opinion of Rajasthan High court in this Judgment
relating to Withdrawal consent is stated as:-
The question, more particularly, which arises in
the present day society in such cases is that the `consent' at the stage of
second motion is not again given in positive form or mischievously withheld or
delayed to extort more amount of permanent alimony than the one initially
agreed upon and received by the estranged wife from the forlorn husband. The
stoic silence at the stage of second motion or even an application to formally
withdraw the petition under Section 13B(1) of the Act
moved unilaterally without real intent to join back & restore the
matrimonial home can be used as a tool of harassment of the husband to extort
more money from him, knowing well that at that stage pushing him to the channel
of regular divorce petition under Section 13 of the Act would not only be a long drawn process but
the same would not allow him any opportunity to remarry with the advancing age
if he still wants it & settle in life again.
It is only after such withdrawal of consent is
shown to be genuine, the Court would refuse to grant the decree by mutual
consent under this provision but on the other hand if withdrawal of consent is
found to be not genuine as it is found here in the present case and the Court
still finds that it is not possible for the parties to live together and the
marriage between the parties has irretrievably broken down and initial consent
was not obtained by any force, fraud and undue influence at the time of filing
of petition under Section 13B (1) of the Act, particularly
when such initial consent involved acting of the parties in certain manner like
payment of permanent alimony, transfer of certain properties and custody of
child, if any, etc. etc., then the court can pass the decree under Section 13B of the Act to give finality & quietus to
such dead marriage so as to leave both the parties free again to choose their
further course in the life and the other party cannot be unnecessarily hooked
on to the litigation, even though the court comes to the conclusion that
withdrawal of consent by the other party is not genuine. This cannot be the
intent and object behind providing hedges under sub-section (2) of Section 13B of the Act frustrating the provisions of
sub-section (1) of Section 13B of
the Act.
Therefore, it will depend upon the facts and
circumstances of each case and the decree by mutual consent under Section 13B of
the Act can be granted, if the withdrawal of consent by one of the parties at
the stage of moving a joint motion under sub-section (2) of Section 13B of the Act is found to be not genuine by the
court and in such circumstances, an interference of continued consent can be
drawn by the court giving it jurisdiction to pass the decree under Section 13B of the Act.
You can contact for legal consultation or advice by
[Read 498a Quash Judgments]You can contact for legal consultation or advice by
Blogger Comment
Facebook Comment