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 divorce for mutual consent can be granted even if wife was not present at the time of second motion?

 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 mutualitly and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce underSection 13-B. 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". [See (i) Halsbury Laws of England, Fourth Edition Vol. 13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol. 1 p. 291 and (iii) Beales v. Beales, [ 1972] 2 All E. R. 667 at 674 : (1972) 2 WLR 972).
15. In our view, the interpretation given to the section by the High Courts of Kerala, Punjab & Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view. The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra)

cannot be said to have laid down the law correctly and they stand overruled. 

16. In the result, we allow the appeal and set aside the decree for dissolution of the marriage. In the circumstances of the case, however, we make on order as to costs.” which makes it apparent that in the absence of the continued mutual consent a decree of divorce under Section 13 B(2) of the Hindu Marriage Act, 1955 as amended cannot be granted as laid down in Smruti Pahariya Vs. Sanjay Pahariya and from the absence of one of the parties before the Trial Court, the presumption of consent for divorce cannot be attributed to that party as consent needs to continue till the date of the decree of divorce under Section 13B (2) of the Hindu Marriage Act, 1955 as amended and the Court has the statutory obligation to hear the parties to ascertain their consent which was clearly not done in the instant case, the appellant not even being present on the date 06.10.2007 i.e. the date of the decree of divorce granted through mutual consent.
IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision : October, 31st, 2018
MAT APP. 93/2007

TINA GUPTA Vs VISHAL GUPTA 

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA

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Leading Judgments of Supreme court

Leading judgment of Supreme court on Divorce by mutual consent

1) Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period Under Section 13B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year Under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be fled one week after the first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11158 of 2017 (Arising out of Special Leave Petition (Civil) No. 20184 of 2017)

Decided On: 12.09.2017

 Amardeep Singh Vs. Harveen Kaur

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