AI Structured Summary
Not yet generated for this judgment
Judgment
M.S. Ramachandra Rao, CJ
The Supreme Court in Smt. Sureshta Devi vs. Om Prakash[AIR 1992 SC 1904] held that mere filing of the petition for divorce by mutual consent would not authorize the Court to make a decree for divorce; that there is a period of waiting from 6 to 18 months which is intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends; and in this transitional period, one of the parties may have a second thought and change the mind not to proceed with the petition; that Section 13-B does not prevent such course of action as it does not provide that if there is a change of mind it should not be by one party alone, but by both. The Court further held that if there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce and if the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other, but such a decree cannot be regarded as decree by mutual consent. It also declared that mutual consent should continue till the divorce decree is passed and is a positive requirement for the court to pass a decree of divorce.
In the instant case admittedly the respondent, though presented the petition for divorce by mutual consent under Section 13-B, later stated before the Family Court on 20.05.2023 that she does not wish to continue with the matter and wants to withdraw the same. Therefore, the Court below was right in permitting her to withdraw the same on that day.
Since the said order is under challenge in this appeal and since the order passed by the order passed by the Principal Judge, Family Court Kangra at Dharamshala on 20.05.2023 is in tune with the judgment Smt. Sureshta Devi (1 supra), we are not inclined to condone the delay in filing the appeal or to entertain the appeal. Accordingly the application as well as the appeal are both dismissed.
However, it is made clear that we are not expressing any opinion on payment received by the respondent from the appellant. It is open for the appellant to take appropriate steps in that regard if so advised.
Pending miscellaneous application(s), if any, also stand disposed of.