Source: Orissa High Court 

Why in News?

Recently, the Orissa High Court in the matter of Doyel Dey v. The Judge, Family Court Balasore & Anr. has held that Consent for divorce can be unilaterally withdrawn by A party even after conclusion of arguments.   

What was the Background of the Doyel Dey v. The Judge, Family Court Balasore & Anr. Case?  

• The case involves a matrimonial dispute between Doyel Dey (wife/petitioner) and the second opposite party (husband).  
• Their marriage was solemnized according to Hindu customs on 12th February 2018. After their marriage, the couple lived together for some time. 
• Due to developing differences between them, both parties jointly filed a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 (HMA).  
• This petition was filed before the Family Court in Balasore. 
• The court-in itiated conciliation proceedings between the parties as required by law. While the matter was pending, and after the completion of arguments but before the final decree, the wife unilaterally withdrew her consent for the mutual divorce. 
• Despite the withdrawal of consent by the wife, the Family Court, Balasore proceeded to pass a judgment on dissolving the marriage between the parties under Section 13-B of the HMA. 
• Aggrieved by this decision, the wife filed a writ petition before the High Court of Orissa at Cuttack, challenging the Family Court's judgment.  
• The essential dispute centers around whether a divorce decree on mutual consent can be granted when one party withdraws their consent before the passing of the final decree, even if such withdrawal occurs after the completion of arguments and when the judgment is reserved. 

What were the Court’s Observations? 

• The Orissa High Court made the following observations:  
  • It established the key undisputed facts that a joint petition was filed for mutual divorce, and the wife withdrew her consent just four days before the decree was passed.  
  • The High Court then relied heavily on the Supreme Court's precedent in the case of Sureshta Devi v. Om Prakash (1992).   
    • Based on this precedent, the High Court found the trial court's decision to be both erroneous and legally unsustainable.   
    • The High Court emphasized that consent is the essence of a mutual divorce decree, and its withdrawal by either party before the final decree must be respected, regardless of the stage of proceedings. 

Landmark Case 

• Sureshta Devi v. Om Prakash (1992) 
  • The Supreme Court had established several crucial principles in the Sureshta Devi cas e that became binding on all lower courts: 
    • The court must hear both parties in a mutual consent divorce. 
    • If either party withdraws consent by stating "I have withdrawn my consent" or "I am not a willing party to the divorce," the court cannot proceed with the divorce decree. 
    • The Supreme Court explicitly held that mutual consent is a "sine qua non" (essential condition) for passing a decree under Section 13-B of HMA. 
    • Most importantly, the Supreme Court established that mutual consent must continue until the divorce decree is passed - it cannot be based solely on the initial petition. 

Divorce By Mutual Consent  

• 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 25th May 1976.    

Section 13 B of HMA 

• For the purposes of 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.  

Withdrawal of Consent Under Section 13 B  

• Hitesh Bhatnagar v. Deepa Bhatnagar (2011):  
  • The Court is bound to pass a decree of divorce declaring the marriage of the parties to be dissolved if the following conditions are met:  
    • A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under subsection (1) and not later than 18 months  
    • 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):  
  • It is only on continued mutual consent of the parties that a decree of divorce under Section 13 B can be passed.  
  • The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.