Saturday, April 30, 2011

Consent for divorce can be withdrawn even after stipulated period: court

Consent for divorce by ‘mutual consent' can be withdrawn by either the wife or the husband even after the expiry of the stipulated 18-month period and in such cases a decree for divorce cannot be granted, the Supreme Court has held.

A Bench of Justices D.K. Jain and H.L. Dattu held that mutual consent as contemplated under Section 13-B (2) of the Hindu Marriage Act should continue until the divorce decree was passed by court.

Writing the judgment, Justice Dattu said: “Marriages are made in heaven, or so it is said. But we are, more often than not, made to wonder what happens to them by the time they descend down to earth. Though there is a legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us.”

Interpreting 13-B (2), the Bench said: “From the language of this section, as well as the settled law, it is clear that one of the parties may withdraw his/her consent anytime before the passing of the decree. The most important requirement for grant of divorce by mutual consent is free consent of both parties.”

Unless there was a complete agreement between the husband and the wife for dissolution of marriage and unless the court was completely satisfied, it could not grant a decree for divorce by mutual consent. “Otherwise, in our view, the expression ‘divorce by mutual consent' would be otiose.”

The Bench said: “The 18-month period for withdrawal of consent was specified only to ensure quick disposal of cases of divorce by mutual consent and not to specify the time period for withdrawal of consent.”

In the instant case, Hitesh Bhatnagar and his wife Deepa, after the birth of a girl child, applied for divorce by mutual consent in a court in Gurgaon, Haryana. Though Deepa withdrew her consent after the stipulated 18 months, the trial court dismissed the application stating that since there was no ‘mutual consent' divorce could not be granted. The Punjab and Haryana High Court upheld this judgment.

Dismissing Hitesh's appeal against this order, the Supreme Court pointed out that non-withdrawal of consent before the expiry of 18 months was irrelevant as Deepa had time and again expressed her willingness to live with her husband for the sake of the girl child. In the light of these facts, it would be a travesty of justice to dissolve this marriage as having broken down. On the appellant's plea that the Court should exercise its extraordinary power under Article 142 (to do substantive justice), the Bench said such a power had been vested in it with implicit trust and faith, and extraordinary care and caution had to be observed while exercising this jurisdiction.

The Bench placed on record its appreciation of the efforts made by counsel Harshvir Pratap Sharma to bring about an amicable settlement between the parties.

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