Ex. Capt. Balwant Singh vs Jasbir Kour

Y.P. Nargotra, J.—This Civil First Misc. Appeal is directed against the judgment and decree dated 18-11-2000 passed by Addl. District

Judge (Matrimonial Cases) Jammu whereby decree for divorce by the mutual consent has been passed and marriage in between the parties has

been dissolved with immediate effect i.e. from the date of the passing of the decree.

Admittedly the facts of the case are that parties are husband and wife. They were married to each other in accordance with the Hindu rites and

law, and from the said wedlock a son was also born, who was a student of 11th class at the time of the filing of the petition. Both the parties having

decided to dissolve their marriage with the mutual consent, made an application before the trial Court on 19-1-2000, for grant of decree for

Divorce by mutual consent. In support of the application the statements of the parties were recorded. Both the parties supported the averments

made in the application and remained consistant with their stand for dissolving the marriage by mutual consent. After institution of the application

trial Court directed the listing of the application on 21st of July, 2000 i.e. after the statutory period of six months. On 21st of July 2000 when the

petition came up for hearing only petitioner Jasbir Kour who is respondent herein appeared. The appellant herein, who was respondent in the said

application did not appear, so the application was adjourned to 14th of August 2000 by the learned trial Court while awaiting the appearance of

the husband /respondent. On 14th of August 2000 an opportunity was sought for production of the parties by Mr. Vijay Sharma, Advocate, on his

request hearing of the application was adjourned to 31st of August 2000. On 31st of August 2000 statement of the petitioner Jasbir Kour

respondent herein came to be recorded in which she continued to press her claim for divorce by mutual consent. The appellant however, did not

appear. Respondent Jasbir Kour sought time for producing further evidence. However, no further evidence was led. Thus on the next date of

hearing appellant's statement was recorded. In his statement the appellant withdrew his consent for the dissolution of the marriage by mutual

consent. The learned trial Court ignored the withdrawing of the consent of the appellant and by its judgment and decree dated 18-11-2000

dissolved the marriage by mutual consent.

Aggrieved by the judgment of the Learned Trial Court, the appellant who is husband of the respondent has come up in appeal.

Mr. Johal, learned counsel for the appellant has argued that in the event of withdrawal of the consent by the appellant within the period of the 18

months no consent decree could be passed in view of the provisions contained u/s 15 of the Hindu Marriage Act.

Mr. Pangotra, learned counsel for the respondent submits that the legal position is not so. He has argued that once the appellant had filed the

consent application and had not withdrawn his consent within the period of six months, he could not have legally withdrawn his consent and,

therefore, learned trial court was justified in passing the decree of divorce.

I have considered the respective contentions of the learned counsel for the parties and perused the record of the case. Section 15 of the Hindu

Marriage Act reads a follows :

Divorce by mutual consent (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be

presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement

of the Act on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and

that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties, made not earlier than six months after

the date of the presentation of the petition referred to in Sub-section (1) and not later than eighteen months after the said date, if the petition is not

withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage

has been solennized and that the averments in the petition are true, pass decree of divorce declaring the marriage to be dissolved with effect from

the date of the decree.

From the bare reading of this Section, it is manifest that when the spouses are not able to live together and mutually agree that the marriage

between them should be dissolved they are entitled to file a joint petition before the competent Court seeking dissolution of marriage. When such

petition is filed it has to lie for a period of six months. The object for keeping the petition pending for a period of six months appears to be that

parties are afforded more time for re-thinking over the matter again and decide as to whether they still want to go for dissolution of marriage. After

the expiry of the six months when the petition comes up before the Court, the parties can seek further time for making up their mind, but this can be

allowed by the Court only up to 18 months. Therefore, within the period of 18 months from the date of the presentation of the petition, parties to

the application have to make up their mind as to whether they want to continue with their joint demand for dissolution of marriage or not and if they

do not withdraw the petition and stick to their stand, then Court on being satisfied after hearing the parties and making such enquiry as it thinks fit

that the marriage has been solemnized and that the averments of the petition are true it can pass a decree of divorce declaring the marriage to be

dissolved with effect from the date of decree.

In the present case the petition was filed on 19-1-2000, the period of 18 months there from would be around the month of June-July 2001. The

respondent-appellant herein one of the parties has withdrawn his claim for dissolving the marriage by mutual consent through his statement dated

13-9-2000. The question, therefore, arising for consideration is that as to whether in such circumstances decree of divorce could be granted on the

ground of mutual consent.

Learned trial Court has relied upon the judgments reported as Nachhattar Singh Vs. Harcharan Kaur, holding that application can be dismissed

as withdrawn only if both the parties to the petition for mutual divorce agree to withdraw the same. It appears that judgment of the Apex Court

rendered in Smt. Sureshta Devi Vs. Om Prakash, was not brought to the notice of the Trial Court. The Supreme Court has observed that:

From the analysis of the Section, it will be apparent that the filing the petition with mutual consent does not authorizes the court to make a decree

for divorce. There is a period of waiting from 6 to 18 months. This interregnum is obviously intended to give time and opportunity to the parties to

reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and

change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the

Section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both.

It cannot be assumed that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they

subsequently move for divorce decree. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by

itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point.

What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of

divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the

enquiry, the Court gets no jurisdiction to make a decree for divorce. 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. Such a decree cannot be regarded as decree by mutual

consent.

Learned trial Court, therefore, was not right in ignoring the fact of withdrawal of the consent by the appellant from the claim of divorce by

mutual consent. The mutual consent to the divorce is a sine qua non for passing a decree for divorce, therefore, the order of the trial Court cannot

be sustained in law, whereby decree for divorce for the mutual consent has been granted, despite the fact that one of the parties had withdrawn his

consent within the statutory period. Judgment and decree passed by the trial Court as such, merits to set aside. Accordingly the same is set. side

and the parties are relegated to the position where they were before the passing of the decree. There shall be no order as to costs.