Continued Mutual Consent Of Both Parties Necessary For Granting Divorce Decree U/S 13B Hindu Marriage Act: Kerala High Court

The Kerala High Court has held that in order to seek divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act, 1955, there ought to be mutual consent of the parties when they move the court with a request to pass a decree of divorce, as well as at the time when the court is called upon to make an enquiry, if the petition is not withdrawn, to pass the final decree.

Relying on the Apex Court decision in Smruti Pahariya v. Sanjay Pahariya (2009), the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed:

"...it is only on the continued mutual consent of the parties that a decree for divorce under Section 13B of the said Act can be passed by the court. If the petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent." 

Factual Matrix 

As per the facts of the case, the appellant husband decided to file a joint petition along with his wife seeking a decree of divorce by mutual consent under Section 13B of the Act, 1955. A compromise agreement dated October 11, 2019, was accordingly, entered into between the parties, wherein the father of the appellant signed as the first witness and the father of the respondent as the second witness. The agreement listed various terms including regarding the custody of the minor child, the fixed deposit of a certain amount in the name of the child by the appellant, and so on. 

When the petition came up for consideration before the Family Court, Thiruvananthapuram, the respondent wife filed a memo withdrawing her consent. The Family Court noticed that both parties were continuously absent during the consideration of the case, and dismissed the petition. 

It is on being aggrieved by the said Order that the appellant filed the present appeal before the High Court invoking Section 19(1) of the Family Courts Act, 1984. 

Findings of the Court 

In order to arrive at its finding, the Division Bench relied upon a plethora of case laws, which are as follows. 

Sureshta Devi v. Om Prakash (1991)

The question before the Apex Court in this case was whether it would be open for one of the parties, at any time till the decree of divorce is passed, to withdraw the consent given to the petition. Faced with differing views on the aspect held by the different High Courts, the Apex Court observed: "Section 13B(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 mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B. Mutual consent should continue till the decree of divorce is passed. It is a positive requirement for the court to pass a decree of divorce". 

Ashok Hurra v. Rupa Bipin Zaveri (1997) 

 In this case, the the Two Judge Bench of the Apex Court considered the larger question as to whether it would be open to one of the parties till the decree of divorce is passed, to withdraw the consent given to the petition. The Court in this case noted that certain observations made in the Sureshta Devi case was too wide. It observed, "the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13B(1) and still pending shall be adjudicated by the Court as provided in Section 13B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13B(2) of the Act". It was therefore of the opinion that the decision in Sureshta Devi may require reconsideration in an appropriate case.

 Anil Kumar Jain v. Maya Jain (2009)

In this case, taking note of the two aforementioned decisions, the Apex Court held that the law in Sureshta Devi would still hold good albeit with certain variations as far as the Apex Court was concerned and in the light of Article 142 of the Constitution. 

Smruti Pahariya v. Sanjay Pahariya (2009)

 A Three Judge Bench of the Apex Court pondered upon the question on how to ascertain continuing consent in a proceeding under Section 13B of the Hindu Marriage Act. The Court in this case endorsed the decision in Sureshta Devi and observed that only on the continued mutual consent of the parties could a decree for divorce under Section 13B of the Act, 1955, be passed by the court. "If the petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent," it added. 

Hitesh Bhatnagar v. Deepa Bhatnagar (2011)

The Apex Court held in this case that unless there was a complete agreement between the husband and wife, for the dissolution of the marriage and unless the court was completely satisfied, it could not grant a decree for divorce by mutual consent. It added that otherwise, the expression, 'divorce by mutual consent' would be otiose. 

Rajesh R. Nair v. Meera Babu (2014)

In this case, the Division Bench of the Kerala High Court clarified that even at the stage of enquiry, the parties would be at liberty to withdraw the petition, and once the petition has been so withdrawn by either of the parties, the Court would loose its  jurisdiction to pass a decree of divorce by mutual consent. The Division Bench in this case had further  considered as to whether the court can enquire into the bona fides or otherwise of the withdrawal of the consent subsequently, after it was given. It observed that it would not be not for the court to probe into the bona fides or reasonableness of withdrawal of consent and once consent had been withdrawn, the only option available to the court would be to close the matter at that stage. 

Benny v. Mini (2021)

However, in this case, another Division Bench of the Kerala High Court held that once the parties agreed to file a joint petition, pursuant to an agreement/compromise in pending proceedings, they would then be estopped from resiling from the agreement. "Therefore, the unilateral withdrawal of consent by the respondent, especially after the appellant has performed his part of the terms in the memorandum of agreement, is only a sharp practice which cannot be permitted or tolerated for a moment, as it would shatter the faith of the litigants in the justice delivery system and make a mockery of alternative dispute resolution mechanism," the Court observed while holding the unilateral withdrawal of consent as unsustainable in law. 

Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari (2011)

The Bombay High Court held that if the petition is filed 'simpliciter under Section 13B of the Act' for divorce by mutual consent, the court must satisfy itself that the consent given by the parties continue till the date of granting the decree of divorce, and added that even if one of the parties withdrew consent, the Court would not have the jurisdiction to grant divorce by mutual consent. 

On the basis of the above decisions, the Court observed that in the case of an original petition filed under Section 13B of the Act, 1955, the Court would have to satisfy itself that the consent given by the parties continue till the date of granting the decree of divorce, as held in Sureshta Devi case. 

"Since the respondent-wife has already withdrawn her consent for a decree of divorce by mutual consent on 12.04.2021 by filing a memo, which is in the form of an affidavit sworn to by her, the only option available to the Family Court on 22.04.2021 was to dismiss that original petition, in view of the law laid down by a Three-Judge Bench of the Apex Court in Smruti Pahariya [(2009) 13 SCC 338]. Therefore, no interference is warranted in the judgment and decree dated 22.04.2021 of the Family Court, Thiruvananthapuram in O.P.No.2351 of 2019," the Court observed while dismissing the Appeal. 

The appellant was represented by Advocates K. Kusumam, K. Kalesh, R.S. Rejitha, P.T. Mary, and Achuthan K. Advocates Sabu S., and Leejoy Mathew V. appeared on behalf of the respondents. 

Case Title: Jayaraj R. v. Kavya G. Nair

Citation: 2023 LiveLaw (Ker) 223

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