Whether court should grant divorce by mutual consent if one party remains absent at the time of second motion?

It is thus well settled that the petition for divorce by mutual consent must be presented by both the parties and has to meet three basic requirements viz. (i) that they are living separately for a period of one year or more; (ii) they have not been able to live together and; (iii) they have mutually agreed that the marriage should be dissolved. Sub Section 2 of Section 13-B stipulates filing of motion by both the parties after six months but not later than 18 months from the date of the presentation of the petition referred to in Sub Section 1. Sub Section 2 of Section 13-B casts a statutory duty on the court to hear the parties and make such inquiry as it thinks fit as regards genuineness of the averments in the petition and existence of mutual consent between the parties. It would also be relevant to note that Section 23 (1) (bb) of the Hindu Marriage Act also mandates that when a divorce is sought on a ground of mutual consent, whether such proceedings are defended or not, the Court should be satisfied that such consent has not been obtained by force, fraud or undue influence. From the plain reading of these provisions, it is evident that the Act confers jurisdiction on the Court to pass a decree for divorce by mutual consent only on being satisfied that the consent expressed by the parties is bonafide and genuine and that the consent for divorce continues till the decree for divorce is passed.

13. In the instant case, the records reveal that the said application under Section 13-B (I) was not presented by the parties but was presented by an Advocate who was allegedly representing both the parties. The trial Court had directed both the parties to appear before the Court on 06/06/2005. The records indicate that on 03/10/2005 the appellant/husband had filed the affidavit in support of the petition. The respondent/wife - Leena Mhetre was not present before the Court. She had not signed the motion filed by the Appellant nor filed a separate motion under Sub Section 2 of Section 13-B. The learned Judge did not secure her presence and did not make any inquiry as regards genuineness of the contents of the petition and existence of her consent. The learned Trial Court has proceeded on a footing that the initial consent given by the respondent - Leena Mhetre is irrevocable. Suffice it to say that this view is not sustainable in view of the settled position of law that the consent should continue as on the date of the decree.

14. It is also pertinent to note that the Trial Court had presumed consent of the wife - Leena Mhetre merely because she had not come forward before the Court to oppose the motion filed by the petitioner-husband. Existence of consent has to be ascertained by complying with the basic requirement of Sub Section 2 of Section 13-B and cannot be presumed as it has been done by the Trial Court. Furthermore, the Court gets jurisdiction to pass a decree for divorce under Section 13-B only when the parties mutually consent for divorce. In short, mutual consent is a sine qua non for passing a decree for divorce under Section 13-B of the Act. In the instant case, the learned Trial Judge has granted divorce without complying with the basic requirements of Sub Section 2 of Section 13-B of the Act and without being satisfied about the existence of consent of the respondent - wife. The learned District Judge was therefore perfectly justified in holding that the order of divorce was without jurisdiction.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 725 of 2015, 

Decided On: 13.06.2019

 Ajit Shashikant Mhetre  Vs.  Leena Ajit Mhetre 

Hon'ble Judges/Coram:

Anuja Prabhudessai, J.

Citation: 2020(1) MHLJ 585

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Whether parties are required to give reason for divorce in petition filed U/S 13-B of Hindu Marriage Act?

The reason assigned by the Family Court that parties have not
assigned the reasons clearly for not being able to live together is of no
relevance at all in a matter like this.  It is not for the Court to probe
into such reasons and decide as to whether parties were justified in living
separately. That is not the scope of a petition filed under Section 13-B of
the Hindu Marriage Act. Therefore, we are of the view that the order of the
Family Court is misconceived. The Family Court has committed an error in
dismissing the joint petition for dissolution of marriage by a decree of
divorce for the reasons expressed by it.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED : 03.08.2016  

CORAM   
THE HON'BLE MR.JUSTICE K.K.SASIDHARAN         
AND  
THE HON'BLE MR.JUSTICE B.GOKULDAS         

C.M.A.(MD).No.767 OF 2016   

A.C.Mathivanan 
B.Sathyabama                  .. Appellants/Petitioners      
Citation:2016(5) ALLMR(JOURNAL)57

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Whether it is mandatory to conduct counselling in family court if one party is unable to remain present in court for counselling?

We feel that a clarification in the procedure

to be adopted by the Family Courts need to be illustrated

in view of the findings contained in the foregoing

paragraphs. The Family courts should follow the normal

procedure of referring the case for counselling in all

matters of joint applications for dissolution filed either

under Section 13B of the Hindu Marriage Act or under


Section 10A of the Indian Divorce Act. The attempt in the

process of counselling should always be intended to

persuading the parties for a reconciliation or reunion. But

in cases where any one of the parties or both the parties

makes an application to the court to dispense with the

procedure of counselling due to their non-availability in

the    country       or due to any  other    valid    reasons

incapacitating their personal appearance, then it will be

left open to the Family courts to consider such

applications and to allow the exemption from undergoing

counselling with respect to either one of the parties or to

both the parties, as the case may be. In such situation it

is also not necessary in all the cases to insist upon both

the parties to have counselling 'together'. It is left open to

the Family Courts to take appropriate decisions in each

case, taking note of the genuineness of such applications.

Possibility for conducting the counselling through "video

conferencing" using computer/laptop or mobile phones

having requisite facility also can be explored and


permitted.
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                               PRESENT:

                        THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
                                                      &
                         THE HONOURABLE MRS. JUSTICE MARY JOSEPH

             TUESDAY,THE 15TH DAY OF SEPTEMBER 2015/
                                     OP (FC).No. 174 of 2015 (R)
                                         ----------------------------

            BLESSY VARGHESE EDATTUKARAN, 
Vs

            SONU, A


        

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Whether wife who obtains divorce by mutual consent can be denied maintenance?

It is well settled, as held by Hon'ble Supreme Court in Vanamala v. H.M. Ranganatha Bhatta,(1995) 5 SCC 299 that a wife who obtains divorce by mutual consent cannot be denied maintenance by virtue of Section 125(4) of the Code. If the marriage between the parties is terminated by a decree of consent divorce, that would not amount to live separately by mutual con-sent.
Now the question which remains to be answered is whether the respondent-former wife is debarred or estopped from claiming the said maintenance on the plea that at the time of granting of decree of divorce by mutual consent, she had agreed not to claim the maintenance from the petitioner in future. In my opinion, the aforesaid contention of the petitioner cannot be accepted. The right to claim maintenance by the wife, children and the old parents, who are not capable to maintain themselves, has been provided under Section 125 of the Code as a public policy by the State. The definition of "wife" has also been given extended meaning by the statute in order to provide security in life to a wife whose marriage has been dissolved by a decree of divorce and who being a destitute is unable to maintain herself. This is a matter of public policy and not of an individual. In such circumstances, the statutory right which has been conferred on a person under a public policy, cannot be waived by the said person by mutual agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872, and the same cannot be enforced in a Court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. In a similar situation, the Kerala High Court in Sadasivan Pilial v. Vijayalakshmi, (1987) 2 Hindu LR 334 : (1987 Cri LJ 765), has held that merely the wife in the joint application filed by both the parties under Section 13-B of the Hindu Marriage Act, relinquished her right on each other person or property, is not a bar for claiming maintenance under Section 125 of the Code.

Punjab-Haryana High Court

Sushil Kumar vs Neelam on 18 March, 2004

Equivalent citations: 2004 CriLJ 3690, I (2005) DMC 619

Bench: S K Mittal

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