Smruti Pahariya vs Sanjay Pahariya

pleased to set aside the judgment and

decree dated 5.12.2007 passed by the

Family Court, Mumbai, in which the Family

Court, dissolved the marriage between the

appellant and the respondent by a decree

of divorce on mutual consent under Section

13B of the Hindu Marriage Act, 1955

(hereinafter "the said Act").

3. Admittedly, the parties are Hindu and

governed by the provisions of the said Act

and they were married on 5.3.1993 at

Mumbai following the Hindu Vedic rites.

Marriage was also registered. After

marriage, the parties resided together in

Flat No. 601, 2nd Floor, Dinath Court, Sir

Pochkhanwala Road, Worli, Mumbai. Two

sons were born to them, one on 1.2.1995

and the other one on 3.4.1997. A few

years after that, serious differences and

incompatibility surfaced between them and

2 all attempts of settlement failed. The

parties stopped living together from

January 2005 and decided to file a

petition seeking divorce by mutual consent

under Section 13B of the said Act. A

joint petition to that effect was filed

before the Family Court at Bandra, Mumbai

and the same was registered on 19.5.2007.

It was averred therein that

incompatibility with each other made it

difficult for them to co-exist and they

stopped cohabiting as husband and wife

from January 2005 (para 6). In paragraph

13, it was stated that there was no

collusion between the parties in filing

the petition for divorce by mutual consent

and in paragraph 17 it was pointed out

that there is no force or coercion between

the parties in filing the petition. Along

with the said petition, certain consent

terms were also filed but with those terms

we are not concerned in this proceeding.

3

4. Under the provisions of Section 13B (2) of

the said Act, a minimum period of six

month has to elapse before such petition

can be taken up for hearing. In the

instant case, the said period expired on

or about 19.11.2007. In between, two

dates were given, namely, 14.6.2007 and

23.8.2007 when the parties were given a

chance for counselling but on both the

days parties were absent and no

counselling took place.

5. On 19.11.2007, after the mandatory period

of six months, the matter came up before

the Family Court. It appears from the

affidavit filed by the wife in this

proceeding before the Bombay High Court

that on 3.11.2007, advocate of the parties

informed the husband that the matter will

be listed on 19.11.2007 and a draft

affidavit of deposition was sent to him

4 through E-mail. It is not in dispute that

both the parties had the same advocate.

It also appears from the affidavit of the

wife that on 18.11.2007 the advocate

received a text SMS in his mobile from the

respondent-husband that he is unable to

attend the court on 19.11.2007.

Therefore, on 19.11.2007, when the matter

appeared for the first time before the

Court, the husband was absent and the

Family Court asked the advocate to inform

the husband of the next date of hearing of

the matter, which was fixed on 1.12.2007.

6. On 19.11.2007 itself, an application was

made by the wife to summon the husband

directing him to be present in the Family

court on the next date. Accordingly,

summons were sent by the Court on

23.11.2007 by courier and the courier

returned with the remark "not accepting".

In this connection, the order which was

passed by the Family Court, on 1.12.2007,

5 on perusal of the service report is of

some importance. The following order was

passed on the service return:

"Perused the first summons and subsequent orders thereto. I have seen service affidavit also, states that servant was present. Hence I am not able to accept it as a proper one. The courier endorsement is also vague. Considering the contents in affidavit, I allow petitioner No.1 to serve the notice by pasting on the address given in cause title to petitioner No.2. EPSB allowed. It is made returnable on 4.12.2007."

7. The petition was thus made returnable on

4.12.2007. It appears that the bailiff

pasted the summons on 3.12.2007 outside

the door of the husband's residence and

the matter came up before the Family Court

on 4.12.2007 and on that day the husband

was absent. The Family Court adjourned

the matter to 10.12.2007. But on

5.12.2007, the wife, filed a petition

before the Family Court with a prayer that

the hearing of the matter may be pre-poned

6 and be taken up on the very same day i.e.

5.12.2007. On the aforesaid prayer of the

wife, though the matter was not on the

board, it was taken on the board by the

Family Court on 5.12.2007 and the decree

of divorce was passed ex-parte on that

date itself.

8. It may be mentioned in this connection

that the Family Court pre-poned the

hearing on wife's application and in the

absence of the husband. Admittedly, the

pre-ponement was done ex-parte.

9. In the background of these facts,

basically four questions fall for our

consideration:

I. Whether impugned decree of divorce

passed by the Family Court on 5.12.2007

is vitiated by procedural irregularity?

7 II. Whether by conducting the

proceeding, in the manner it did, the

Family Court acted contrary to the avowed

object of the Family Courts Act, 1984?

III. Whether from the absence of the

husband before the Family Court on

19.11.2007, 1.12.2007 and 4.12.2007 it

can be inferred that his consent for

grant of divorce on a petition on mutual

consent subsists, even though he has not

withdrawn the petition for divorce on

mutual consent?

IV. Whether on a proper construction of

Section 13B (2) of the said Act, which

speaks of `the motion of both the

parties', this Court can hold that the

Family Court can dissolve a marriage and

grant a decree of divorce in the absence

of one of the parties and without

actually ascertaining the consent of that

8 party who filed the petition for divorce

on mutual consent jointly with the other

party?

10. This fourth question assumes general

importance since it turns on the

interpretation of the section. Apart from

that, this question is relevant here in

view of various recitals in the judgment

and decree of the learned Judge of the

Family Court. It appears that the Family

Court granted the decree of divorce by

proceeding on the presumption of

continuing consent of the husband.

11. While dealing with the first question

about procedural irregularity in the

matter, this Court finds that the Family

Court did not act properly even if it is

held that it was correct in presuming the

continuing consent of the respondent-

husband.

9

12. From the sequence of events, it appears

that on 19.11.2007 when the matter came up

before the Court, the first day after the

mandatory period of six months, the

husband was absent. The Court directed

service of summons on the husband on the

request of the wife. The service return

was before the Court on 1.12.2007.

Looking at the service return, the Court

found that service was not a proper one

and the Court was also not satisfied with

the endorsement of the courier. Under

such circumstances, the Court's direction

on the prayer of the appellant-wife, for

substituted service under Order 5 Rule 20

of the Civil Procedure Code is not a

proper one. Direction for substituted

service under Order 5 Rule 20 can be

passed only when Court is satisfied "that

there is reason to believe that the

defendant is keeping out of the way for

the purpose of evading service, or that

10 for any other reason the summons cannot be

served in the ordinary way".

13. In the facts of this case, the Court did

not, and rather could not, have any such

satisfaction as the Court found that the

service was not proper. If the service is

not proper, the Court should have directed

another service in the normal manner and

should not have accepted the plea of the

appellant-wife for effecting substituted

service. From wife's affidavit asking for

substituted service, it is clear that the

servant of the respondent-husband

intimated her advocate's clerk that

respondent-husband was out of Bombay and

will be away for about two weeks.

However, the appellant-wife asserted that

the respondent-husband was in town and was

evading. But the Court on seeing the

service return did not come to the

conclusion that the husband was evading

11 service. Therefore, the Court cannot, in

absence of its own satisfaction that the

husband is evading service, direct

substituted service under Order 5 Rule 20

of the Code.

14. Apart from the aforesaid irregularity, the

Court, after ordering substituted service

and perusing service return on 4.12.2007,

fixed the matter for 10.12.2007. Then, on

the application of the wife on 5.12.2007,

pre-poned the proceeding to 5.12.2007 and

on that very day granted the decree of

divorce even though the matter was not on

the list.

15. This Court strongly disapproves of the

aforesaid manner in which the proceeding

was conducted in this case. A Court's

proceeding must have a sanctity and

fairness. It cannot be conducted for the

convenience of one party alone. In any

12 event, when the Court fixed the matter for

10.12.2007, it could not pre-pone the

matter on an ex-parte prayer made by the

appellant-wife on 5.12.2007 and grant the

decree of divorce on that day itself by

treating the matter on the board in the

absence of the husband. This, in our

opinion, is a flagrant abuse of the

judicial process and on this ground alone,

the decree dated 5.12.2007 has to be set

aside.

16. On this aspect, this Court endorses the

dissatisfaction expressed by the Bombay

High Court in paragraph 34 of its judgment

under appeal about the manner in which the

date of final hearing was pre-poned and an

ex-parte decree was passed.

17. While dealing with the second question it

appears that the Family Court has not

acted in a manner which is required of it

13 having regard to the jurisdiction vested

on it under the Family Courts Act.

18. The Family Courts Act, 1984 (hereinafter,

Act 66 of 1984) was enacted for adopting a

human approach to the settlement of family

disputes and achieving socially desirable

results. The need for such a law was felt

as early as in 1974 and Chief Justice P.B.

Gajendragadhkar, as the Chairman of Law

Commission, in the 59th report on Hindu

Marriage Act, 1955 and Special Marriage

Act, 1954, opined:-

"In our Report on the Code of Civil Procedure, we have had occasion to emphasis that in dealing with disputes concerning the family, the court ought to adopt a human approach - an approach radically different from that adopted in ordinary civil proceedings, and that the court should make reasonable efforts at settlement before commencement of the trial. In our view, it is essential that such an approach should be adopted in dealing with matrimonial disputes. We would suggest that in due course, States should think of establishing family courts, with presiding officers who will be well qualified in law, no doubt, but who will be trained to deal with such dispute in a 14 human way, and to such courts all disputes concerning the family should be referred."

19. Almost 10 years thereafter when the said

Act 66 of 1984 was enacted, the words of

the Chief Justice were virtually quoted in

its statement of objects and reasons.

Consistent with the said human approach

which is expected to be taken by a Family

Court Judge, Section 9 of the Act casts a

duty upon the Family Court Judge to assist

and persuade the parties to come to a

settlement.

20. In the instant case by responding to the

illegal and unjust demand of the wife of

pre-poning the proceeding ex-parte and

granting an ex-parte decree of divorce,

the Family Court did not discharge its

statutory obligation under Section 13B (2)

of the said Act of hearing the parties.

When a proceeding is pre-poned in the

absence of a party and a final order is 15 passed immediately, the statutory duty

cast on the Court to hear the party, who

is absent, is not discharged. Therefore,

the Family Court has not at all shown a

human and a radically different approach

which it is expected to have while dealing

with cases of divorce on mutual consent.

21. Marriage is an institution of great social

relevance and with social changes, this

institution has also changed

correspondingly. However, the institution

of marriage is subject to human frailty

and error. Marriage is certainly not a

mere "reciprocal possession" of the sexual

organs as was philosophized by I. Kant

[The Philosophy of Law page 110, W. Hastie

translation 1887] nor can it be

romanticized as a relationship which

Tennyson fancied as "made in Heaven"

[Alymer's Field, in Complete Works 191,

193 (1878)].

16 22. In many cases, marriages simply fail for

no fault of the parties but as a result of

discord and disharmony between them. In

such situations, putting an end to this

relationship is the only way out of this

social bondage. But unfortunately,

initially the marriage laws in every

country were `fault oriented'. Under such

laws marriage can be dissolved only by a

Court's decree within certain limited

grounds which are to be proved in an

adversarial proceeding. Such `fault'

oriented divorce laws have been criticized

as `obsolete, unrealistic, discriminatory

and sometimes immoral' (Foster, Divorce

Law Reform; the choices before State page

112).

23. As early as in 1920 possibly for the first

time in New Zealand, Section 4 of the

Divorce and Matrimonial Causes Amendment

17 Act, 1920 gave the Court the discretion to

grant a decree of divorce to parties when

they had separated for three years under a

decree of judicial separation or

separation order by the Magistrate or

under a deed of separation or "even by

mutual consent". Till such amendment,

divorce after separation by parties on

"mutual consent" was unknown.

24. Considering the said amendment of 1920 and

exercising the discretion the amended law

conferred on the Judge, Justice Salmond in

Lodder Vs. Lodder, [1921, New Zealand Law

Reports, 876], came to the conclusion that

it is not necessary to enquire into the

merits of the disputes between the parties

since the man and the wife had put an end

to their relationship 13 years ago and the

learned Judge found that their alienation

is "permanent and irredeemable". The

learned Judge also felt that in the

18 circumstances of the case "no public or

private interest is to be served by the

further continuance of the marriage bond"

and a decree for its dissolution was

passed. (See page 881).

25. This seems to be the first decision of a

Court granting divorce on a `no-fault'

basis and because of the fact that a

marriage had broken down for all practical

purposes as parties were staying

separately for a very long time.

26. The British society was very conservative

as not to accept divorce on such a ground

but in 1943, Viscount Simon, Lord

Chancellor, in the case of Blunt Vs.

Blunt, [1943, 2 All ER 76], speaking for

the House of Lords, while categorizing the

heads of discretion which should weigh

with the courts in granting the decree of

divorce, summed up four categories but at

19 page 78 of the Report, the Lord Chancellor

added a fifth one and the views of His

Lordship were expressed in such matchless

words as they deserve to be extracted

herein below:-

"To these four considerations I would add a fifth of a more general character, which must indeed be regarded as of primary importance, viz., the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce the court to exercise a favourable discretion in many instances where in an earlier time a decree would certainly have been refused".

27. In India also, prior to the amendment in

our laws by insertion of Section 13B in

the said Act, the Courts felt the

necessity for an amendment in the divorce

law. The Full Bench of the Delhi High

Court in the judgment of Ram Kali Vs.

20 Gopal Dass - ILR (1971) 1 Delhi 6, felt

the inadequacy of the existing divorce

law. Chief Justice Khanna (as His

Lordship then was) speaking for the Full

Bench came to the following conclusion:-

"...It would not be a practical and realistic approach, indeed it would be unreasonable and inhuman, to compel the parties to keep up the fagade of marriage even though the rift between them is complete and there are no prospects of their ever living together as husband and wife." [See page 12].

28. In coming to the aforesaid conclusion, the

learned Chief Justice relied on the

observation of the Viscount Simon, Lord

Chancellor, in the case of Blunt Vs. Blunt

(Supra).

29. Within a year thereafter, Hon'ble Justice

Krishna Iyer, in the case of Aboobacker

Haji Vs. Mamu Koya - 1971 K.L.T. 663,

while dealing with Mohammedan Law relating 21 to divorce correctly traced the modern

trend in legal system on the principle of

breakdown of marriage in the following

words:-

"When an intolerable situation has been reached, the partners living separate and apart for a substantial time, an inference may be drawn that the marriage has broken down in fact and so should be ended by law. This trend in the field of matrimonial law is manifesting itself in the Commonwealth countries these days."(See page 668)

30. In coming to the said finding the learned

Judge relied on the principles laid down

by Justice Salmond in Lodder Vs. Lodder

(supra).

31. After the said amendment in 1976 by way of

insertion of Section 13B in the said Act

in the 74th Report of the Law Commission of

India ( April, 1978), Justice H.R. Khanna,

as its Chairman, expressed the following

views on the newly amended Section 13B:

22

"Marriage is viewed in a number of countries as a contractual relationship between freely consenting individuals.

A modified version of the basis of consent is to be found in the theory of divorce by mutual consent.

The basis in this case is also consent, but the revocation of the relationship itself must be consensual, as was the original formation of the relationship. The Hindu Marriage Act, as amended in 1976, recognizes this theory in section 13B."

32. On the question of how to ascertain

continuing consent in a proceeding under

Section 13B of the said Act, the decision

in the case of Smt. Sureshta Devi Vs. Om

Prakash - (1991) 2 SCC 25, gives

considerable guidance.

33. In Paragraph 8 of the said judgment, this

Court summed up the requirement of Section

13B (1) as follows:

"8. There are three other requirements in sub-section (1). They are:-

(i) They have been living separately for a period of one year.

23

(ii) They have not been able to live together, and

(iii) They have mutually agreed that marriage should be dissolved."

34. In paragraph 10, the learned Judges dealt

with sub-section (2) of Section 13B. In

paragraphs 11 and 12, the learned Judges

recorded the divergent views of the Bombay

High Court [Jayashree Ramesh Londhe v.

Ramesh Bhikaji Londhe - AIR 1982 Bom 302:

86 Bom LR 184], Delhi High Court [Chander

Kanta v. Hans Kumar - AIR 1989 Del 73],

Madhya Pradesh High Court [Meena Dutta v.

Anirudh Dutta - (1984) 2 DMC 388 (MP)],

and the views of the Kerala High Court

[K.I. Mohanan v. Jeejabai - AIR 1988 Ker

28: (1986) 2 HLR 467: 1986 KLT 990],

Punjab and Haryana High Court [Harcharan

Kaur v. Nachhattar Singh - AIR 1988 P & H

27: (1987) 2 HLR 184: (1987) 92 Punj LR

321] and Rajasthan High Court [Santosh

Kumari v. Virendra Kumar - AIR 1986 Raj

24 128: (1986) 1 HLR 620: 1986 Raj LR 441]

respectively on Section 13B.

35. In paragraphs 13 and 14 of the Sureshta

Devi (supra), the learned Judges gave an

interpretation to Section 13B (2) and in

doing so the learned Judges made it clear

that the reasons given by the High Court

of Bombay and Delhi are untenable inasmuch

as both the High Courts held that once the

consent is given by the parties at the

time of filing the petition, it is

impossible for them to withdraw the same

to nullify the petition.

36. We also find that the interpretation given

by Delhi and Bombay High Courts is

contrary to the very wording of Section

13B (2) which recognizes the possibility

of withdrawing the petition filed on

consent during the time when such petition

has to be kept pending.

25

37. In paragraph 13 of Sureshta Devi (supra),

the learned Judges made the position clear

by holding as follows:

"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 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."

38. Therefore, it was made clear in Sureshta

Devi (supra) that under Section 13B (2),

the requirement is the `motion of both the 26 parties' and interpreting the same, the

learned Judges made it clear that there

should be mutual consent when they move

the Court with a request to pass a decree

of divorce and there should be consent

also at the time when the Court is called

upon to make an enquiry, if the petition

is not withdrawn and then pass the final

decree.

39. Interpreting the said Section, it was held

in Sureshta Devi (supra) that if the

petition is not withdrawn in the meantime,

the Court, at the time of making the

enquiry, does not have any jurisdiction to

pass a decree, unless there is mutual

consent.

40. Learned Judges made it further clear that

if the Court makes an enquiry and passes a

divorce decree even at the instance of one

of the parties and against the consent of

27 the other, such a decree cannot be

regarded as a decree by mutual consent.

41. In paragraph 14 of the said judgment,

learned Judges made it further clear as

follows:-

"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 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard." {See (i) Halsbury's Laws of England, 4th edn. Vol. 13 para 645;

(ii) Rayden on Divorce, 12th edn., Vol. 1, P. 291; and (iii) Beales V. Beales}."

42. In paragraph 15 of the judgment, this

Court held that the decisions of the High

Courts of Bombay, Delhi and Madhya Pradesh

cannot be said to have laid down the law

correctly and those judgments were

overruled. We also hold accordingly. 28

43. The decision in Sureshta Devi (supra) was

rendered by a Bench of two learned Judges

of this Court. In a subsequent decision of

two learned Judges of this Court in the

case of Ashok Hurra Vs. Rupa Bipin Zaveri

- (1997) 4 SCC 226, the judgment in

Sureshta Devi (supra) was doubted as

according to the learned Judges some of

the observations in Sureshta Devi (supra)

appear to be too wide and require

reconsideration in an appropriate case.

44. Learned Judges in Ashok Hurra (supra) made

it clear that they were passing the order

in that case on the peculiar fact

situation. This Court also held that in

exercise of its jurisdiction under Article

142 of the Constitution, a decree of

divorce by mutual consent under Section

13B of the Act was granted between the

29 parties. (See paragraph 16 and 22 of the

report).

45. It appears that those observations were

made by the learned Judges without

considering the provisions of the Family

Courts Act. In any event, the decision in

Ashok Hurra (supra) was considered by a

larger Bench of this Court in Rupa Ashok

Hurra Vs. Ashok Hurra and Anr. - (2002) 4

SCC 388. No doubt was expressed by the

larger Bench on the principles laid down

in Sureshta Devi (supra). It appears that

a petition for review was filed against

the two judge decision in Ashok Hurra

(supra) and the same was dismissed. Thereafter, the question before the

Constitution Bench in Rupa Ashok Hurra

(supra) was as follows:-

"Whether the judgment of this Court dated 10.3.1997 in Civil Appeal No.1843 of 1997 [1997 (4) SCC 226] can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can

30 be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be considered by a Constitution Bench of this Court."

46. In the Constitution Bench decision of this

Court in Rupa Ashok Hurra (supra), this

Court did not express any view contrary to

the views of this Court in Sureshta Devi

(supra).

47. We endorse the views taken by this Court

in Sureshta Devi (supra) as we find that

on a proper construction of the provision

in Section 13B (1) and 13B (2), there is

no scope of doubting the views taken in

Shreshta Devi (supra). In fact the

decision which was rendered by the two

learned Judges of this Court in Ashok

Hurra (supra) 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.

31

48. None of the counsel for the parties argued

for reconsideration of the ratio in

Sureshta Devi (supra).

49. We are of the view that it is only on the

continued mutual consent of the parties

that decree for divorce under Section 13B

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 facts situation,

discussed above.

50. In our view it is only the mutual consent

of the parties which gives the Court the

32 jurisdiction to pass a decree for divorce

under Section 13B. So in cases under

Section 13B, mutual consent of the parties

is a jurisdictional fact. The Court while

passing its decree under Section 13B 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.

In the facts of the case, the impugned

decree was passed within about three weeks

from the expiry of the mandatory period of

six months without actually ascertaining

the consent of the husband, the respondent

herein.

51. It is nobody's case that a long period has

elapsed between the expiry of period of

six months and the date of final decree.

33

52. For the reasons aforesaid, we affirm the

view taken by the learned Judges of the

Bombay High Court in the order under

appeal.

53. The appeal is disposed of as follows:-

(i) On receipt of the copy of this

judgment, the Family Court is

directed to issue notice to both the

parties to appear in the Court on a

particular day for taking further

steps in the case.

(ii) On that day, the parties are at

liberty to engage their own counsel

and they may be personally present

before the Court and inform the Court

as to whether they have consent to

the passing of the decree under

Section 13B of the Act. If both the

parties give their consent for

passing of the decree under Section

34 13B, the Court may pass appropriate

orders.

(iii) If any of the parties makes a

representation that he/she does not

have consent to the passing of the

decree, the Court may dispose of the

proceedings in the light of the

observations made by us.

There shall be no order as to costs.

...................C.J.I. (K.G. BALAKRISHNAN)

.......................J. (P. SATHASIVAM)

.......................J. New Delhi (ASOK KUMAR GANGULY) May 11, 2009

35