The year 1955 stands as a pivotal period for Hindu law, marking a departure from the uncodified practices preceding it. The necessity of the time led to the enactment of significant legislation, including the Hindu Marriage Act, 1955. This Act, a key example, lifted taboos on inter-caste marriages, unions with widows, and remarriages that existed in the pre-1955 era.

Case: Smt.Sureshta Devi Vs Om Prakash 1992 AIR 1904, 1991 SCR (1) 274
Court: Supreme Court Of India
Bench: Shetty, K.J. (J), Agrawal, S.C. (J)
Bench: K Shetty
Decided On: 7 February, 1991
Appellant: Smt. Sureshta Devi
Respondents: Om Prakash
ACT: Hindu Marriage Act, 1955, Special Marriage Act, 1954, Marriage Laws (Amendment) Act, 1976

In Hindu law, marriage is viewed as a sacred and spiritual union, and the absence of divorce provisions in the uncodified Hindu law reflected this emphasis on the sanctity of marital bonds. The Hindu Marriage Act effectively dismantled patriarchal norms, granting both spouses the right to seek divorce.

Divorce by mutual consent is considered one of the more refined and dignified methods to dissolve a marriage.[1] This provision allows a husband and wife to amicably end their marriage when they realize they can no longer coexist.[2]Compared to other divorce procedures, mutual consent offers a smoother and less complicated legal process. It merely requires the agreement of both parties to terminate the marriage, and if satisfied, the court may expedite the proceedings.

Section 13B of the Hindu Marriage Act of 1955 stipulates that mutual consent is a prerequisite for obtaining a divorce decree. It emphasizes that such consent should be voluntary, without any coercion, fraud, or undue influence.[3] The court necessitates the ongoing mutual agreement until the finalization of the divorce. The question before the Supreme Court revolves around whether a party initiating a mutual consent divorce petition under section 13B retains the right to revoke their consent or if it becomes irrevocable once granted.

Facts Of The Case:
In this case, the appellant, who is the respondent's wife, sought divorce through mutual consent. The marriage ceremony occurred on November 21, 1968, but the couple spent only a brief period together from December 9, 1984, to January 7, 1985, as per a court order. During this month, they did not live together nor engage in any romantic relationship.

Following the provisions of clause 13B of the Hindu Marriage Act of 1955, the couple filed a mutual consent divorce petition in the Harimpur district court. Statements from both parties were recorded on January 9, 1985. However, on January 15, 1985, the wife (appellant) filed an application asserting that her statement was obtained under duress and intimidation by her husband. She requested the court to dismiss the petition, declaring her unwillingness to be part of the mutual consent divorce. The High Court received an appeal challenging the district judge's rulings, prompting a reconsideration.

Despite the district judge's initial dismissal of the divorce petition, the High Court, on appeal, overturned this decision and granted a judgment for the dissolution of the marriage through mutual consent. The High Court emphasized that once a spouse consents to a divorce petition, they cannot unilaterally withdraw that consent. The court held that if the initial consent was freely given, the marriage could be dissolved through mutual consent.

Unsatisfied with this decision, the appellant appealed to the Supreme Court.

Issue:

• Whether a party to a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 ('Act') can unilaterally withdraw the consent or whether the consent once given is irrevocable?[4]

Law:
To obtain a divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, certain prerequisites must be met:

• The couple must have lived separately for a continuous period of one year.
• The couple should not have been able to live together during this period.
• Both spouses must mutually agree to dissolve the marriage.⁵

Additionally, Sub-section (2) of Section 13-B outlines procedural aspects, stating that the parties must jointly move the court not earlier than six months and not later than 18 months from the date of petition presentation. This joint motion allows the court to assess the genuineness of the petition's claims and ensures that the consent was not obtained through force, fraud, or undue influence.[6]

The issue of whether a party in a mutual consent divorce case under Section 13-B can retract their consent has led to debates in various Indian high courts.

The Bombay High Court, in Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, asserted that the crucial moment for a party to grant consent for divorce by mutual consent is when the petition is filed, emphasizing that such consent should be free from force, fraud, or undue influence.[7]

The High Court of Delhi, as seen in Smt. Chander Kanta v. Hans Kumar and others,[8] and the Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta,[9] aligned with the Bombay High Court's perspective.

Conversely, the Rajasthan High Court in Santosh Kumari v. Virendra Kumar[10] and the Kerala High Court in K.L Mohanan v. Jeejabai[11] held that either spouse can decide to end the marriage by mutual consent at any time before the court issues a judgment for dissolution. These courts introduced a revocation clause, allowing either party to utilize it after a court review of the consent's admissibility.

The Punjab and Haryana High Court in Harcharan Kaur v. Nachhattar Singh[12] concurred with the view that consent could be revoked until the court's issuance of the dissolution judgment.

Judgement:
In this case, the Indian Supreme Court affirmed the decisions of the High Courts of Rajasthan, Kerala, Punjab, and Haryana, emphasizing that the essence of mutual consent in divorce would be undermined if the courts had the power to grant a divorce solely based on the initial petition filed by the couple.

The Supreme Court rightly asserted that filing a petition with mutual consent does not confer the court the authority to immediately grant a divorce decision. The prescribed waiting period of 6 to 18 months, as outlined in Subsection (2) of Section 13-B, is designed to allow the parties sufficient time for reflection, consultation with family and friends, and the possibility of reconsideration.

During this interim period, one party may choose not to proceed with the petition, and the spouse is not obligated to participate in the joint motion under paragraph (2). The Section does not mandate a change in the other party's stance if the first party decides otherwise.

According to the High Courts of Rajasthan, Kerala, Punjab, and Haryana, the court must be satisfied with the genuine mutual consent of the parties during the inquiry period. If mutual consent is lacking at the time of the inquiry, the court lacks jurisdiction to grant a divorce. In case of a different opinion, the court, upon one party's request and without the other's consent, may initiate an inquiry and issue a divorce judgment. However, such a decision cannot be considered one reached through mutual consent.

On the other hand, the High Courts in Delhi and Mumbai have adopted the stance that the crucial period for obtaining mutual consent for divorce is when the petition is filed, not when the parties later seek a divorce decree. This approach appears impractical, as parties are aware that the petition alone does not automatically terminate the marriage; an additional step is required to dissolve it, as evident in Subsection (2) of Section 13-B.

The requirement in this clause for mutual consent to be present when requesting the court to grant a divorce order is pivotal. The court lacks jurisdiction to provide a divorce decision if mutual consent is absent at the time of the inquiry.

Granting the court the authority to issue a decree based solely on the first petition would undermine the core principles of mutuality and consent in divorce cases. Under Section 13-B, mutual consent for divorce is a prerequisite for the court to grant a divorce decree, and this consent should persist until the issuance of the final divorce decree.

Analysis:
This case, revolving around the interpretation of mutual consent in divorce proceedings under Section 13-B of the Hindu Marriage Act, presents a nuanced legal debate. The crux of the matter lies in determining the temporal significance of mutual consent – whether it should be assessed at the time of filing the petition or at the subsequent stage when seeking a divorce decree.

The Supreme Court's decision to align with the High Courts of Rajasthan, Kerala, Punjab, and Haryana underscores the importance of sustained and genuine mutual consent throughout the divorce process. Upholding a waiting period of 6 to 18 months post-petition filing, the court acknowledges the complexity of marital decisions, allowing parties time for introspection and potential reconciliation.

Contrastingly, the dissenting opinion from the High Courts of Delhi and Mumbai argues for a more immediate recognition of mutual consent, asserting that the critical moment is when the petition is filed. This perspective may stem from concerns about prolonging the divorce process, potentially causing unnecessary distress to the parties involved.

In my opinion, a balanced approach is crucial. While recognizing the need for a waiting period to ensure the stability and sincerity of the decision to divorce, it's equally important to acknowledge the autonomy of individuals in shaping their marital destiny. The law should be empathetic to the complexities of human relationships, allowing room for reconsideration while ensuring that consent remains intact at decisive stages.

A more comprehensive legislative framework could be considered, explicitly addressing the stages at which mutual consent is pivotal. Striking a balance between protecting individuals from impulsive decisions and respecting their agency is vital for a family law system that reflects contemporary societal values.

The case prompts a reflection on the delicate intersection of legal frameworks and human emotions. The law must navigate a path that safeguards the sanctity of marriage while recognizing the evolving dynamics of personal relationships.

References:

• Amit Jain v. Taruna Jain, (2007) 147 PLR 114.
• Anil Malhotra & Ranjit Malhotra, Marriage and Divorce – Complete Constitutional Justice, 2015 INT'l Surv. FAM. L. 121 (2015).
• Harcharan Kaur v. Nachhattar Singh, AIR (1987-2)92 PLR 224.
• Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bombay 302.
• K.L Mohanan v. Jeejabai, AIR 1988 Kerala 28.
• Meena Dutta v. Anirudh Dutta, (1984) II DMC 388.
• Sampak P. Garg, Law and Religion: The Divorce Systems of India, 6 Tulsa J. COMP. & INT'l L. 1 (1998).
• Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128.
• Smt. Chander Kanta v. Hans Kumar and anr., AIR 1989 Delhi 73.
• Smt. Sureshta Devi vs Om Prakash 1992 AIR 1904, 1991 SCR (1) 274.
• The Hindu Marriage Act, 1955, 23(1)(bb), No. 25, Acts of Parliament, 1955 (India).

End-Notes:

• Anil Malhotra & Ranjit Malhotra, Marriage and Divorce – Complete Constitutional Justice, 2015.
• Sampak P. Garg, Law and Religion: The Divorce Systems of India, 6 Tulsa J.
• The Hindu Marriage Act, 1955, 23(1)(bb), No. 25, Acts of Parliament, 1955 (India).
• Smt. Sureshta Devi vs Om Prakash 1992 AIR 1904, 1991 SCR (1) 274.
• The Hindu Marriage Act, 1955, 13B(2), No. 25, Acts of Parliament, 1955 (India).
• ibid.
• Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bombay 302.
• Smt. Chander Kanta v. Hans Kumar and Anr., AIR 1989 Delhi 73.
• Meena Dutta v. Anirudh Dutta, (1984) II DMC 388.
• Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128.
• K.L Mohanan v. Jeejabai, AIR 1988 Kerala 28.
• Harcharan Kaur v. Nachhattar Singh, AIR (1987-2)92 PLR 224.