Unilateral Withdrawal of Consent in Mutual Divorce : Case Analysis on Smt. Sureshta Devi Vs. Om Prakash

Case Analysis :

Smt. Sureshta Devi Vs. Om Prakash

 

In the Supreme Court of India

Citation: AIR1992SC1904, (1991)2SCC25

Hon’ble Judges/Coram: K. Jagannatha Shetty and S.C. Agrawal, JJ.

Appellants: Sureshta Devi

Respondent: Om Prakash

Decided On: February 7th, 1991

FACTS:-

The appellant and the respondent were married on November 21st, 1968. They started living separately after six or seven months of marriage. On January 8th, 1935, they moved a petition under Section 13B for divorce by mutual consent. But the consent was withdrawn during the time period when the case was pending. The District Court dismissed the petition. However, the High Court reversed the order of the District Court and granted the decree for dissolution of marriage by mutual consent. Thus appeal was made to the Supreme Court.

ISSUE:-

Whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition?

JUDGMENT:-

The Court observed that Sub-section (1) of Section 13B requires that the petition for divorce by mutual consent must be presented 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. It is necessary that immediately preceding the presentation of petition, the parties must have been ‘living separately’, connoting that they ought not to be living like husband and wife. The marriage must have broken down and there must be no scope of reconciliation between the parties. The parties must have mutually agreed that the marriage should be dissolved. The motion made under Sub-section (2) 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 filing of the petition with mutual consent does not authorize the Court to make a decree for divorce. In the interregnum (from 6 months to 18 months) one of the parties may have a second thought and change the mind not to proceed with the petition. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. There should also be mutual consent when the parties move the Court with a request to pass a decree of divorce. If there is no mutual consent at the time of enquiry, the Court gets no jurisdiction to make a decree for divorce.

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 until the divorce decree is passed.

HELD:-

Mutual consent should continue until the divorce decree is passed. Therefore, court did not grant decree of divorce by mutual consent in this case.

 

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