Hitesh Bhatnagar vs Deepa Bhatnagar

Hitesh Bhatnagar .............. Appellant

versus

Deepa Bhatnagar ..............Respondent

J U D G M E N T

H.L. Dattu, J.

1) Marriages are made in heaven, or so it is said. But we are more often

than not made to wonder what happens to them by the time they

descend down to earth. Though there is legal machinery in place to

deal with such cases, these are perhaps the toughest for the courts to

deal with. Such is the case presently before us.

2) The appellant-husband and the respondent-wife got married according

to the Hindu Marriage Act, 1955 [hereinafter referred to as `the Act']

in 1994, and are blessed with a daughter a year thereafter. Some time

in the year 2000, due to differences in their temperaments, they began

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to live separately from each other and have been living thus ever

since. Subsequently, in 2001, the parties filed a petition under Section

13B of the Act before the District Court, Gurgaon, for dissolution of

the marriage by grant of a decree of divorce by mutual consent.

However, before the stage of second motion and passing of the decree

of divorce, the respondent withdrew her consent, and in view of this,

the petition came to be dismissed by the Ld. Addl. District Judge,

Gurgaon, though the appellant insisted for passing of the decree. The

appellant, being aggrieved, has filed appeal No. F.A.O. No. 193 of

2003, before the High Court of Punjab and Haryana. The Learned

Judge, by his well considered order, dismissed the appeal vide order

dt. 08.11.2006. Being aggrieved by the same, the appellant is before

us in this appeal.

3) We have heard the learned counsel for the parties and since the parties

wanted to ventilate their grievances, we have heard them also.

4) The issues that arise for our consideration and decision are as under:

(a) Whether the consent once given in a petition for divorce

by mutual consent can be subsequently withdrawn by one

of the parties after the expiry of 18 months from the date

of the filing of the petition in accordance with Section

13B (1) of the Act.

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(b) Whether the Court can grant a decree of divorce by

mutual consent when the consent has been withdrawn by

one of the parties, and if so, under what circumstances.

5) In order to answer the issues that we have framed for our

consideration and decision, Section 13B of the Act requires to be

noticed :-

13B. 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 Marriage Laws (Amendment) Act, 1976, (68 of 1976.)

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 solemnized and that the

averments in the petition are true, pass a decree of divorce

declaring the marriage to be dissolved with effect from the

date of the decree.

6) Admittedly, the parties had filed a petition for divorce by mutual

consent expressing their desire to dissolve their marriage due to

temperamental incompatibility on 17.08.2001. However, before the

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stage of second motion, the respondent withdrew her consent by filing

an application dated 22.03.2003. The withdrawal of consent was after

a period of eighteen months of filing the petition. The respondent,

appearing in-person, submits that she was taken by surprise when she

was asked by the appellant for divorce, and had given the initial

consent under mental stress and duress. She states that she never

wanted divorce and is even now willing to live with the appellant as

his wife.

7) The appellant, appearing in-person, submits that at the time of filing

of the petition, a settlement was reached between the parties, wherein

it was agreed that he would pay her `3.5 lakhs, of which he states he

has already paid `1.5 lakhs in three installments. He further states in

his appeal, as well as before us, that he is willing to take care of the

respondent's and their daughter's future interest, by making a

substantial financial payment in order to amicably settle the matter.

However, despite repeated efforts for a settlement, the respondent is

not agreeable to a decree of divorce. She says that she wants to live

with the appellant as his wife, especially for the future of their only

child, Anamika.

4 8) The question whether consent once given can be withdrawn in a

proceeding for divorce by mutual consent is no more res integra. This

Court, in the case of Smt. Sureshta Devi v. Om Prakash, (1991) 2

SCC 25, has concluded this issue and the view expressed in the said

decision as of now holds the field.

9) In the case of Sureshta Devi (supra.), this Court took the view:

"9. The `living separately' for a period of one year should be

immediately preceding the presentation of the petition. It is

necessary that immediately preceding the presentation of

petition, the parties must have been living separately. The

expression `living separately', connotes to our mind not

living like husband and wife. It has no reference to the place

of living. The parties may live under the same roof by force

of circumstances, and yet they may not be living as husband

and wife. The parties may be living in different houses and

yet they could live as husband and wife. What seems to be

necessary is that they have no desire to perform marital

obligations and with that mental attitude they have been

living separately for a period of one year immediately

preceding the presentation of the petition. The second

requirement that they `have not been able to live together'

seems to indicate the concept of broken down marriage and

it would not be possible to reconcile themselves. The third

requirement is that they have mutually agreed that the

marriage should be dissolved.

10. Under sub-section (2) the parties are required to make a

joint motion not earlier than six months after the date of

presentation of the petition and not later than 18 months

after the said date. This motion enables the court to proceed

with the case in order to satisfy itself about the genuineness

of the averments in the petition and also to find out whether

the consent was not obtained by force, fraud or undue

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influence. The court may make such inquiry as it thinks fit

including the hearing or examination of the parties for the

purpose of satisfying itself whether the averments in the

petition are true. If the court is satisfied that the consent of

parties was not obtained by force, fraud or undue influence

and they have mutually agreed that the marriage should be

dissolved, it must pass a decree of divorce."

On the question of whether one of the parties may withdraw the

consent at any time before the actual decree of divorce is passed, this Court

held:

"13. From the analysis of the section, it will be apparent that

the filing of the petition with mutual consent does not

authorise the court to make a decree for divorce. There is a

period of waiting from 6 to 18 months. This interregnum was

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. The High Courts of Bombay

and Delhi have proceeded on the ground 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. This approach appears to be

untenable. 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. It provides that "on the motion of both

the parties. ... if the petition is not withdrawn in the

meantime, the court shall ... pass a decree of divorce ...".

What is significant in this provision is that there should also

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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."

10) In the case of Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226,

this Court in passing reference, observed:

"16. We are of opinion that in the light of the fact-situation

present in this case, the conduct of the parties, the

admissions made by the parties in the joint petition filed in

Court, and the offer made by appellant's counsel for

settlement, which appears to be bona fide, and the

conclusion reached by us on an overall view of the matter, it

may not be necessary to deal with the rival pleas urged by

the parties regarding the scope of Section 13-B of the Act

and the correctness or otherwise of the earlier decision of

this Court in Sureshta Devi case or the various High Court

decisions brought to our notice, in detail. However, with

great respect to the learned Judges who rendered the

decision in Sureshta Devi case, certain observations therein

seem to be very wide and may require reconsideration in an

appropriate case. In the said case, the facts were:

The appellant (wife) before this Court married the

respondent therein on 21-11-1968. They did not stay

together from 9-12-1984 onwards. On 9-1-1985, the husband

and wife together moved a petition under Section 13-B of the

Act for divorce by mutual consent. The Court recorded

statements of the parties. On 15-1-1985, the wife filed an

application in the Court stating that her statement dated 9-1-

1985 was obtained under pressure and threat. She prayed

for withdrawal of her consent for the petition filed under

Section 13-B and also prayed for dismissal of the petition.

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The District Judge dismissed the petition filed under Section

13-B of the Act. In appeal, the High Court observed that the

spouse who has given consent to a petition for divorce

cannot unilaterally withdraw the consent and such

withdrawal, however, would not take away the jurisdiction of

the Court to dissolve the marriage by mutual consent, if the

consent was otherwise free. It was found that the appellant

(wife) gave her consent to the petition without any force,

fraud or undue influence and so she was bound by that

consent. The issue that came up for consideration before this

Court was, whether a party to a petition for divorce by

mutual consent under Section 13-B of the Act, can

unilaterally withdraw the consent and whether the consent

once given is irrevocable. It was undisputed that the consent

was withdrawn within a week from the date of filing of the

joint petition under Section 13-B. It was within the time-limit

prescribed under Section 13-B(2) of the Act. On the above

premises, the crucial question was whether the consent given

could be unilaterally withdrawn. The question as to whether

a party to a joint application filed under Section 13-B of the

Act can withdraw the consent beyond the time-limit provided

under Section 13-B(2) of the Act did not arise for

consideration. It was not in issue at all. Even so, the Court

considered the larger question as to whether it is open to one

of the parties at any time till a decree of divorce is passed to

withdraw the consent given to the petition. In considering the

larger issue, conflicting views of the High Courts were

adverted to and finally the Court held that the mutual

consent should continue till the divorce decree is passed. In

the light of the clear import of the language employed in

Section 13-B(2) of the Act, it appears that in a joint petition

duly filed under Section 13-B(1) of the Act, motion of both

parties should be made six months after the date of filing of

the petition and not later than 18 months, if the petition is

not withdrawn in the meantime. In other words, 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 13-B(1) and

still pending shall be adjudicated by the Court as provided in

8 Section 13-B(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 13-B(2) of the Act. However, it is

unnecessary to decide this vexed issue in this case, since we

have reached the conclusion on the fact-situation herein. The

decision in Sureshta Devi case may require reconsideration

in an appropriate case. We leave it there."

11) These observations of this Court in the case of Ashok Hurra (supra)

cannot be considered to be ratio decidendi for all purposes, and is

limited to the facts of that case. In other words, the ratio laid down by

this Court in the case of Sureshta Devi (supra) still holds the field.

12) In the case of Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC

338, a bench of three learned judges of this Court, while approving the

ratio laid down in the case of Sureshta Devi (supra), has taken the

view :-

"40. In the Constitution Bench decision of this Court in Rupa

Ashok Hurra this Court did not express any view contrary to

the views of this Court in Sureshta Devi. We endorse the

views taken by this Court in Sureshta Devi as we find that on

a proper construction of the provision in Sections 13-B(1)

and 13-B(2), there is no scope of doubting the views taken in

Sureshta Devi. In fact the decision which was rendered by

the two learned Judges of this Court in Ashok Hurra has to

be treated to be one rendered in the facts of that case and it

is also clear by the observations of the learned Judges in that

case.

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41. None of the counsel for the parties argued for

reconsideration of the ratio in Sureshta Devi.

42. We are of the view that it is only on the continued mutual

consent of the parties that a decree for divorce under Section

13-B of the said Act can be passed by the court. If 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 as

has been done by the learned Family Court Judge in the

instant case and especially in its fact situation, discussed

above.

43. In our view it is only the mutual consent of the parties

which gives the court the jurisdiction to pass a decree for

divorce under Section 13-B. So in cases under Section 13-B,

mutual consent of the parties is a jurisdictional fact. The

court while passing its decree under Section 13-B would be

slow and circumspect before it can infer the existence of

such jurisdictional fact. The court has to be satisfied about

the existence of mutual consent between the parties on some

tangible materials which demonstrably disclose such

consent."

13) The appellant contends that the Additional District Judge, Gurgaon,

was bound to grant divorce if the consent was not withdrawn within a

period of 18 months in view of the language employed in Section

13B(2) of the Act. We find no merit in the submission made by the

appellant in the light of the law laid down by this Court in Sureshta

Devi's case (supra).

10 14) The language employed in Section 13B(2) of the Act is clear. The

Court is bound to pass a decree of divorce declaring the marriage of

the parties before it to be dissolved with effect from the date of the

decree, if the following conditions are met:

a. A second motion of both the parties is made not before 6 months

from the date of filing of the petition as required under sub-

section (1) and not later than 18 months;

b. After hearing the parties and making such inquiry as it thinks fit,

the Court is satisfied that the averments in the petition are true;

and

c. The petition is not withdrawn by either party at any time before

passing the decree;

15) In other words, if the second motion is not made within the period of

18 months, then the Court is not bound to pass a decree of divorce by

mutual consent. Besides, from the language of the Section, as well as

the settled law, it is clear that one of the parties may withdraw their

consent at any time before the passing of the decree. The most

important requirement for a grant of a divorce by mutual consent is

free consent of both the parties. In other words, unless there is a

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complete agreement between husband and wife for the dissolution of

the marriage and unless the Court is completely satisfied, it cannot

grant a decree for divorce by mutual consent. Otherwise, in our view,

the expression `divorce by mutual consent' would be otiose.

16) In the present fact scenario, the second motion was never made by

both the parties as is a mandatory requirement of the law, and as has

been already stated, no Court can pass a decree of divorce in the

absence of that. The non-withdrawal of consent before the expiry of

the said eighteen months has no bearing. We are of the view that the

eighteen month period was specified only to ensure quick disposal of

cases of divorce by mutual consent, and not to specify the time period

for withdrawal of consent, as canvassed by the appellant.

17) In the light of the settled position of law, we do not find any infirmity

with the orders passed by the Ld. Single Judge.

18) As a last resort, the appellant submits that the marriage had

irretrievably broken down and prays that the Court should dissolve the

marriage by exercising its jurisdiction under Article 142 of the

Constitution of India. In support of his request, he invites our

attention to the observation made by this Court in the case of Anil

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Kumar Jain v. Maya Jain, (2009) 10 SCC 415, wherein though the

consent was withdrawn by the wife, this Court found the marriage to

have been irretrievably broken down and granted a decree of divorce

by invoking its power under Article 142. We are not inclined to

entertain this submission of the appellant since the facts in that case

are not akin to those that are before us. In that case, the wife was

agreeable to receive payments and property in terms of settlement

from her husband, but was neither agreeable for divorce, nor to live

with the husband as his wife. It was under these extraordinary

circumstances that this Court was compelled to dissolve the marriage

as having irretrievably broken down. Hence, this submission of the

appellant fails.

19) In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10

SCC 425, a Bench of three learned Judges (of which one of us was a

party), took the view:

"25. Article 142 being in the nature of a residuary power

based on equitable principles, the Courts have thought it

advisable to leave the powers under the article undefined.

The power under Article 142 of the Constitution is a

constitutional power and hence, not restricted by statutory

enactments. Though the Supreme Court would not pass any

order under Article 142 of the Constitution which would

amount to supplanting substantive law applicable or

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ignoring express statutory provisions dealing with the

subject, at the same time these constitutional powers cannot

in any way, be controlled by any statutory provisions.

However, it is to be made clear that this power cannot be

used to supplant the law applicable to the case. This means

that acting under Article 142, the Supreme Court cannot

pass an order or grant relief which is totally inconsistent or

goes against the substantive or statutory enactments

pertaining to the case. The power is to be used sparingly in

cases which cannot be effectively and appropriately tackled

by the existing provisions of law or when the existing

provisions of law cannot bring about complete justice

between the parties."

20) Following the above observation, this Court in the case of Manish

Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the

marriage on the ground of irretrievable breakdown of marriage, held:

"19. Therefore, the law in this regard can be summarised to

the effect that in exercise of the power under Article 142 of

the Constitution, this Court generally does not pass an order

in contravention of or ignoring the statutory provisions nor

is the power exercised merely on sympathy."

21) In other words, the power under Article 142 of the Constitution is

plenipotentiary. However, it is an extraordinary jurisdiction vested by

the Constitution with implicit trust and faith and, therefore,

extraordinary care and caution has to be observed while exercising

this jurisdiction.

14 22) This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC

337 held that irretrievable breakdown of a marriage cannot be the sole

ground for the dissolution of a marriage, a view that has withstood the

test of time.

23) In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC

73, this Court took the view:

"17. The marriage between the parties cannot be dissolved

only on the averments made by one of the parties that as the

marriage between them has broken down, no useful purpose

would be served to keep it alive. The legislature, in its

wisdom, despite observation of this Court has not thought it

proper to provide for dissolution of the marriage on such

averments. There may be cases where, on facts, it is found

that as the marriage has become dead on account of

contributory acts of commission and omission of the parties,

no useful purpose would be served by keeping such marriage

alive. The sanctity of marriage cannot be left at the whims of

one of the annoying spouses......."

24) This Court uses its extraordinary power to dissolve a marriage as

having irretrievably broken down only when it is impossible to save

the marriage and all efforts made in that regard would, to the mind of

the Court, be counterproductive [See Samar Ghosh v. Jaya Ghosh,

(2007) 4 SCC 511].

15 25) It is settled law that this Court grants a decree of divorce only in those

situations in which the Court is convinced beyond any doubt that there

is absolutely no chance of the marriage surviving and it is broken

beyond repair. Even if the chances are infinitesimal for the marriage

to survive, it is not for this Court to use its power under Article 142 to

dissolve the marriage as having broken down irretrievably. We may

make it clear that we have not finally expressed any opinion on this

issue.

26) In the present case, time and again, the respondent has stated that she

wants this marriage to continue, especially in order to secure the

future of their minor daughter, though her husband wants it to end.

She has stated that from the beginning, she never wanted the marriage

to be dissolved. Even now, she states that she is willing to live with

her husband putting away all the bitterness that has existed between

the parties. In light of these facts and circumstances, it would be

travesty of justice to dissolve this marriage as having broken down.

Though there is bitterness amongst the parties and they have not even

lived as husband and wife for the past about 11 years, we hope that

they will give this union another chance, if not for themselves, for the

future of their daughter. We conclude by quoting the great poet

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George Eliot "What greater thing is there for two human souls than to

feel that they are joined for life - to strengthen each other in all

labour, to rest on each other in all sorrow, to minister to each other

in all pain, to be one with each other in silent, unspeakable memories

at the moment of the last parting."

27) Before parting with the case, we place on record our appreciation for

the efforts made by Shri. Harshvir Pratap Sharma, learned counsel, to

bring about an amicable settlement between the parties.

28) In the result, the appeal fails. Accordingly, it is dismissed. No order

as to costs.

.................................J.

[ D. K. JAIN]

.................................J.

[ H. L. DATTU]

New Delhi,

April 18, 2011.

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