SC Judgment under article 142 of constitution on divorce granted to husband due to irretrivable breakdown of marriage, and basically the fact that wife withdrew consent on mutual divorce agreement AFTER she had got the property from husband as per agreement.
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SUPREME COURT OF IND IA
RECORD OF PROCEEDINGS
CIVIL APPEAL NO 5952 OF 2009
(Arising out of SLP (C ) No.14361 of 2007
ANIL KUMAR JAIN Petitioner (s)
VERSUS
MAYA JAIN Respondent (s)
Date : 01/09/2009 This Petition was called on for judgment today.
For Appellant (s) Mr.Shankar Divate, Adv.
For Respondent(s) Mrs. K. Sharda,Adv.
Hon'ble Mr. Justice Altamas Kabir pronounced the
Judgment of the Bench comprising His Lordship, and
Hon'ble Mr. Justice Cyriac Joseph.
Leave granted.
The appeal is allowed in terms of the signed
judgment which is placed on the file.
(Kusum Syal) (Juginder Kaur)
Sr.P.A. Court Master
(Signed Reportable judgment is placed on the file.)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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. Â
(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 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."
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.
