Family Court Cannot Grant Divorce Based On Earlier Consent When It Is Later Withdrawn During Divorce Proceedings: Allahabad High Court

The Allahabad High Court has held that the Family Court cannot grant divorce based only on earlier consent given at the time of filing the divorce petition if the consent was withdrawn at a later stage in the divorce proceedings.

Parties were married in 2006. After the appellant disserted her husband, he instituted the divorce proceedings on grounds of infertility attributable to appellant-wife. In her written statement, appellant disputed the fact, and the case was referred to mediation which failed.

Subsequently, the case remained pending for 2 years after which the appellant-wife filed a second written statement stating that she moved to her paternal home while she was pregnant only because she faced threat from the relatives of the husband. She pleaded that the divorce petition be dismissed. The second mediation between the parties failed. However, in the third mediation dated 17.11.2009, it was recorded that the parties be given a separate residence without interference from relatives of either party.

Further, in her statement dated 03.02.2011, the appellant-wife specifically stated that she does not consent to divorce. She produced documents and evidence that two children were born to the parties in 2008 and 2011. Relying on Order VIII Rule 9 CPC, respondent-husband challenged the maintainability of the second written statement.

The Court observed that though date was fixed for hearing the objections regarding maintainability of the second written statement, but on the said date, the Family Court upheld the objections and disregarded the second written statement filed by the wife. It was further observed that thereafter the suit was heard on merits and decreed the next day, i.e., on 30.03.2011.

Appellant-wife approached the High Court, challenging the decreed of divorce granted by the Additional District Judge, Court no.8, Bulandshahar.

The Court observed that the divorce proceedings were instituted under Section 13 of the Hindu Marriage Act by the respondent-husband and not under Section 13-B of the Act which provides for divorce by mutual consent. It was observed that the Family Court erred in overlooking the oral statements made by the appellant-wife and the joint statement of the parties in the third mediation, wherein they had expressed desire to cohabit.

It was observed that the subsequent written statement filed by the appellant and evidence contradicted the stand taken by the parties at the time of filing of the divorce petition and the first written statement which was ignored by the Family Court.

The Court observed that “it is true that after filing of a Written Statement, no further Written Statement may arise (at the instance of the defendant), by way of a procedural right - except with the leave of the Court and upon such terms as the Court may provide. At the same time, that fetter placed on the procedural right of the parties, did not prevent the learned Court below from itself requiring additional Written Statement to be filed - if that appeared necessary to it to dispense true justice.”

Since three years had passed since the filing of the divorce petition, the Court observed that the Family Court ought have sought a written statement from the appellant regarding subsequent developments. It was further held that since there was lack of proven facts stated in the plaint and the first written statement, the Family Court could not have granted a divorce decree.

The Court observed that Section 13-B of the Hindu Marriage Act provides that the petition for divorce by mutual consent must be decided within 18 months of its presentation unless it is withdrawn by the parties in the meantime.

Reliance was placed on Sureshta Devi Vs. Om Prakash where the Supreme Court held that for granting a decree of divorce under Section 13-B of the Act, there must be mutual consent of the parties and the Court shall be satisfied as to the bonafides and consent of the parties. It was held that where there is lack of mutual consent, the Family Court has no jurisdiction for granting a decree of divorce. A decree of divorce at the instance of one party without the consent of the other party is not divorce by mutual consent.

The bench comprising of Justice Saumitra Dayal Singh and Justice Donadi Ramesh held

“In granting the divorce on the strength of mutual consent, the learned Court below may have dissolved the marriage between the parties only in the event of that consent continuing to exist on the date of the order being passed. Once the appellant claimed to have withdrawn her consent and that fact was on the record, it never became open to the learned court below to act on that (withdrawn) consent, belatedly. In any case, it never became open to the learned court below to force the appellant to abide by the original consent given by her that too almost three years later. To do that would be travesty of justice. Here, it may be noted, no money was paid to the appellant by way of permanent alimony etc., in lieu of her consent.”

The Court observed that while the appellant gave her consent on 01.04.2008 and 25.04.2008, 18 months had lapsed and thereafter she withdrew her consent in February, 2011 which was ignored by the Family Court while passing the divorce decree on 30.03.2011.

Holding that on the day of the decree, there was no consent on behalf of the appellant-wife, the Court set aside the divorce decree. The case was remitted back to the Family Court to proceed in accordance with law.

Case Title: Smt. Pinki v. Pushpendra Kumar [FIRST APPEAL No. - 155 of 2011]

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