Source: Bombay High Court

Why in News?

The Bombay High Court recently in Aniket Arun Dhatrak (died) v. Shalaka Aniket Dhatrak ruled that the right to seek a divorce is a personal right and cannot be inherited by family members after the individual’s death.

• This decision came as the court dismissed an appeal from the deceased man’s family, who sought to continue divorce proceedings against his wife following his death during the Covid-19 pandemic.

What was the Background of Aniket Arun Dhatrak (died) v. Shalaka Aniket Dhatrak Case?

• Aniket and Shalaka filed a petition for divorce by mutual consent on 14th October 2020.
• As per their agreement, Aniket paid Shalaka Rs. 2,50,000 out of the agreed Rs. 5,00,000 alimony amounts when filing the petition.
• Aniket died during the COVID-19 pandemic on 15^th April 2021, before the second motion for divorce could be filed.
• On 28^th April 2021, Shalaka submitted a statement withdrawing her consent for divorce and requested the petition be disposed of.
• Aniket's mother and brothers (the appellants) applied to be brought on record as his legal heirs to continue the divorce proceedings.
• Shalaka opposed this application, stating the cause of action did not survive after Aniket's death.
• The Family Court refused permission for the appellants to come on record as legal heirs and disposed of the divorce petition as requested by Shalaka.
• The appellants appealed this decision to the Bombay High Court.
• The key issue was whether the right to sue for divorce by mutual consent survives to the deceased husband's family members when he dies before the second motion is filed.

What were the Court’s Observations?

• The Court observed that the submission of a second motion under Section 13-B(2) of the Hindu Marriage Act, 1955, is a condition precedent for passing a decree of divorce by mutual consent.
• The court acquires jurisdiction to undertake further inquiry only upon the joint motion of both parties, as stipulated in Section 13-B(2). This process is not automatic and cannot be initiated by one party alone.
• The right to seek divorce is a personal right that does not survive to legal heirs, as per the principle of actio personalis moritur cum persona.
• In the absence of a second joint motion, the petition for divorce by mutual consent stands abated upon the death of one party before the filing of the second motion.
• Mutual consent of both parties is a jurisdictional fact for the court to pass a decree under Section 13-B.
• Legal heirs of a deceased spouse do not have the right to be brought on record to pursue divorce proceedings initiated by mutual consent under Section 19 of the Family Courts Act.
• The 18-month period specified in Section 13-B (2) is intended to ensure quick disposal of cases, not to specify a time period for withdrawal of consent.
• The court's jurisdiction to undertake more inquiry and pass a decree depends on the joint motion of both parties, not just the filing of the initial petition.
• The personal nature of the right to seek divorce precludes its continuation by legal heirs after the death of one party to the proceedings.
  • The court finds no illegality in the Family Court's order and consequently dismisses the appeal.

What is Divorce by Mutual Consent?

• About:
  • Divorce by mutual consent falls under no fault theory where the parties do not have to prove fault on the part of another person.
  • Under Hindu Law divorce by mutual consent was added by Section 13B which was included by way of Amendment by the Marriage law (Amendment) Act, 1976 and it came into force from 25^th May 1976.
• Application for Divorce:
  • Both parties to the marriage may jointly file a petition for divorce before the competent court, requesting the dissolution of their marriage by mutual consent.
• Consent:
  • The consent of both parties must be voluntary and unequivocal, indicating their mutual agreement to dissolve the marriage and settle all related issues amicably.
• Settlement of Disputes:
  • The parties must present a settlement agreement addressing all issues such as alimony, division of property, and custody of children, which must be accepted by both parties.
• Cooling-off Period:
  • In certain jurisdictions, there may be a mandatory cooling-off period during which the parties may reconsider their decision to divorce.
• Court Proceedings:
  • Upon fulfilling the requisite conditions and presenting the settlement agreement, the court will review the petition and, if satisfied, grant a decree of divorce by mutual consent.
• Final Decree:
  • The divorce is finalized upon the court issuing a decree of divorce, which legally terminates the marriage

What are the Legal Provisions Involved in this Case?

Section 13 B of Hindu Marriage Act, 1955

• For divorce by mutual consent, two petitions must be jointly filed by the parties.
• As per Section 13B (1):
  • A joint petition for dissolution of marriage shall be presented before the District Court.
  • Whether the marriage was solemnized before or after commencement of Marriage Laws (Amendment) Act, 1976.
  • The parties should have been living separately for a period of one year or more.
  • The petition should provide that they have not been able to live together, and they have mutually agreed that the marriage should be dissolved.
• Section 13 B (2) provides for second motion:
  • When should it be filed?
    • Not earlier than six months after the presentation of the first motion and not later than eighteen months after the said.
    • If the petition is not withdrawn in the meantime.
  • How is the decree of divorce passed?
    • After hearing the parties and after making such enquiry as it thinks fit
    • That the marriage has been solemnized and that the averments in the petition are true
    • Pass a decree declaring marriage to be dissolved with effect from the date of decree
• The purpose of prescribing the above procedure is to give parties some period of togetherness before separation.
• Marriage is a very important part of any individual’s life and therefore before the marriage is dissolved by mutual consent the parties must be given some reasonable time to reflect on their move to dissolve the marriage.

What are the Major Case Laws Referred?

• Yallawwa v. Shantavva (1997):
  • This Supreme Court case dealt with whether a wife could file an application to set aside an ex parte divorce decree after the husband's death.
  • The court held that divorce proceedings abate upon the death of a spouse if no decree has been passed.
• Sureshta Devi v. Om Prakash (1991):
  • This Supreme Court case is crucial in interpreting Section 13-B of the Hindu Marriage Act, 1955.
  • It held that mutual consent should exist at the time of the decree, not just at the time of filing the petition.
• Hitesh Bhatnagar v. Deepa Bhatnagar (2011):
  • This Supreme Court case reaffirmed the principles laid down in Sureshta Devi Case.
  • It clarified that consent can be withdrawn even beyond the 18-month period mentioned in Section 13-B(2).
  • 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
  • The petition is not withdrawn by either party at any time before passing the decree
• Smruti Pahariya v. Sanjay Pahariya (2009):
  • This three-judge bench decision of the Supreme Court approved the ratio laid down in Sureshta Devi Case.
  • It emphasized that mutual consent is a jurisdictional fact for granting divorce under Section 13-B.
  • The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.