Existence of A Dispute Not A Pre Requisite For Grant of Divorce By Mutual Consent: Chhattisgarh High Court

The Chhattisgarh High Court has held that the existence of a serious dispute between husband and wife is not a prerequisite for the grant of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955.

A Division Bench of Justice Prashant Kumar Mishra and N.K. Chandravanshi observed that the provisions contained in Section 13-B of the Act, 1955 do not provide for the existence of ground like the ones included in Section 13 for grant of divorce by mutual consent.

The Court observed,

"It may happen in a given case that there is no quarrel or dispute between the couple, but yet their actions and behavior are not compatible with each other for living a happy and peaceful married life; therefore, they may seek divorce by mutual consent. If an application is otherwise duly constituted and properly presented before the Court, it is not for the Court to search for ground or a reason, which has compelled the parties to seek divorce by mutual consent."

Background

The Court was hearing an appeal challenging the decree of judicial separation passed by the trial Court in the proceedings for grant of mutual divorce under Section 13(B) of the Hindu Marriage Act, 1955. After getting married, the couple lived together only for two days and never lived as husband and wife.

A year later, they moved a joint application for divorce by mutual consent. After six months cooling-off period, however, they remained on their decision to take mutual divorce; the trial court refused to pass a decree of divorce by mutual consent and has instead passed a decree for judicial separation for one year.

Senior Avinash Chand Sahu, appearing for the appellant, submitted no defect in the application or the procedure for moving such application for grant of divorce by mutual consent. The trial court should have allowed the application.

Findings

The High Court observed that while granting a decree for judicial separation in place of an order of divorce by mutual consent, the trial Court has referred to the provisions contained in Section 13A of the Act, 1955. The section 13A provides that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi), and (vii) of sub-section (1) Section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass a decree for judicial separation instead.

The Court remarked,

"The provisions contained in Section 13-A would attract only when the trial Court is satisfied "having regard to the circumstances of the case" that it considers it just to pass a decree for judicial separation instead of mutual divorce. The phrase "having regard to the circumstances of the case" requires the trial court to find out the circumstances which compel it to pass a decree for judicial separation."

It was further remarked that unless such circumstances exist, the trial Court is not entitled to pass a decree for judicial separation in a mechanical manner. Moreover, the Court noted that while passing the impugned order, the trial court had observed that the period of their staying together was so short that it is not possible that any serious dispute would have arisen between them.

Setting aside the said decree, the Court observed that while in the impugned decree, the trial court has assumed that the dispute between them might not be of such intensity, forcing them to seek divorce by mutual consent. However, it was held that the existence of a serious dispute between the couple is not a prerequisite for the grant of bail under Section 13B of the Hindu Marriage Act, 1955.

Title: Smt. Sandhya Sen v. Sanjay Sen

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