Couple Divorced By Mutual Consent Can Marry Again But Cannot Challenge Divorce Decree In Appeal Under HMA: Punjab & Haryana HC

The Punjab and Haryana High Court has held that an appeal against the dissolution of marriage by mutual consent under Section 13-B of the Hindu Marriage Act (HMA) would not be maintainable on the ground that the couple wants to live together as husband and wife again.

Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "Permitting parties to subsequently retract their sworn statements and assert a desire to reconcile, by stating that they have realised their mistake and now they want to live together, would amount/constitute Contempt of Court and perjury. Additionally, this behavior would undermine the authority of the Court. Insult its proceedings and make a mockery of its verdict."

"Since the parties have now realised their mistake and want to live together, as per Section 15 of the Act, they are allowed to marry again. There is no bar in the Act for re-marriage of the parties, who have been granted divorce decree," the bench added.

The Court was hearing an appeal against the decree whereby the petition for divorce filed under Section 13-B of the Hindu Marriage Act, 1955 was allowed and marriage between the petitioners was dissolved by mutual consent.

The custody of the minor daughter was granted to the wife and the divorce decree stated that the parties would remain bound by their statements made in the Court. 

Counsel for the appellants (couple) submitted that after obtaining a decree of divorce by mutual consent, the appellants have realized their mistake and now they want to stay together for the welfare of the minor child since their divorce affected the minor child the most. 

After hearing the submissions, the Court considered the question, "Whether an appeal under Section 28 of the Act, against dissolution of marriage by mutual consent under Section 13-B of the Act, would be maintainable in view of the provisions of Section 96(3) of the Code of Civil Procedure, 1908 ?"

The bench noted that the intention of the legislature under Section 28 of the HMA wherein decrees made by the Court in any proceeding under the Hindu Marriage Act 1955 shall be appealable includes all decrees except decree under Section 13-B which is divorce by mutual consent.

Since there is a bar under Section 96(3) of CPC that no appeal shall lie from a decree passed by the Court with the consent of the parties. Therefore, no appeal shall lie from the decree passed by the Court with the consent of the parties under Section 13-B of the Act.

An appeal under Section 13-B would be maintainable only on the ground that the consent was obtained by force, fraud or undue influence, it added.

The Court said, "In view of Section 96(3) of CPC, no appeal shall lie against the consent decrees. If the legislature had intended for decrees, under Section 13-B to be appealable, then provisions under Sections 21 and 28A of the Act and 96(3) of CPC, would be rendered redundant."

The Court highlighted that provisions of Section 15 of Act, provide that when a marriage has been dissolved by decree of divorce and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

If the legislation had intended to include Section 13-B of the Act, the wording in Section 15 of the Act that “either there is no right of appeal against the decree” would become meaningless."

The division bench further said, "given the significant pendency in the Courts, allowing parties to further delay proceedings by seeking to set aside a decree, they initially sought by giving their mutual consent, would only make the backlog worse."

In the light of the above, the plea was dismissed.

Advocate Rahul Aggarwal for appellants.

Citation: 2024 LiveLaw (PH) 189

Title: XXX v. XXX