REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALATE JURISDICTION
CIVIL APPEAL NO. 6288 OF 2008
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by mutual consent can be subsequently withdrawn by one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mutual consent when the consent has been withdrawn by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.
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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
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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).
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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.
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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].
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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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