NAME
OF THE CASE |
Sureshta
Devi v. Om Prakash |
CITATION |
1992
AIR SC 1904 |
DATE
OF JUDGMENT |
7
February 1991 |
APPELLANT |
Sureshta
Devi |
RESPONDANT
|
Om
Prakash |
BENCH/JUDGE |
Justice
K Jagannatha Shetty and Justice
SC Agrawal |
STATUTES
INVOLVED |
Hindu
Marriage Act, 1955 |
IMPORTANT
SECTIONS |
Hindu
Marriage Act:- Section
13-B: Divorce by mutual
consent. |
Sureshta
Devi v. Om Prakash AIR 1992 SC
Citation:
Smt.
Sureshta Devi v. Om Parkash, 1992 AIR SC 1904
Parties:
Sureshta
Devi
Appellant
Versus
Om
Prakash
Defendant
Judges:
Justice
K Jagannatha Shetty
Justice
SC Agrawal
Abstract:
The
case Smt. Sureshta Devi v. Om Prakash deals with the issue whether consent once
given to the divorce petition can be unilaterally withdrawn by the party or is
it irrevocable. Mutual consent is an important condition in divorce under
Section 13-B of the Hindu Marriage Act but there is no provision for unilateral
withdrawal of the consent except in cases of fraud, coercion, force etc. Though
the Act does provide for a time period of 6 to 18 months before the divorce
petition is finalized in case there has been a change in mind of the parties
after due consultation, there is no clause in case a single party decides to
withdraw their consent once given. The case also mentions the parameters for a
divorce and emphasizes the importance of mutual consent throughout the duration
of the divorce petition.
Introduction
The
Hindu Marriage Act 1955 contains provision for divorce and it is necessary for
there to be existence of mutual consent throughout the divorce.
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withdrawn in the meantime, the court shall, on being satisfied, after hearing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.
Facts
1. The
appellant Smt. Sureshta Devi is the wife of the respondent, Mr Om Prakash.
During the course of their marriage, they did not stay together except for a
brief period of time. A divorce petition was filed under Section 13-B of the
Hindu Marriage Act and their statements were recorded on 9th January
1985.
2. On
15 January 1985, an appeal was filed by Smt. Sureshta Devi stating that the
statement given by her was under pressure and threat of the husband, further
she stated that she wasn’t even allowed to see or meet her relatives to consult
them before filing the petition for divorce nor were they permitted to
accompany her to the court. Hence, she prayed for the dismissal of the
petition.
3. District
Court originally dismissed the decree of divorce but on an appeal, the High
Court reversed the judgment and granted a decree for the dissolution of the
marriage.
4. Hence,
an appeal before the Supreme Court was filed by the appellant.
Issues
Whether
consent given by a party under Section 13-B of the Hindu Marriage Act for divorce
by mutual consent be unilaterally withdrawn by the party or whether the consent
once given is irrevocable.
Judgment
The
bench in this case was a division bench of two judges- Justice K. J. Shetty and
Justice S. C. Agrawal. The judgment was delivered by K. Jagannatha Shetty in
favour of the appellant Smt. Sureshta Devi.
The
Court cited Section 13-B, sub-section 2 of the Hindu Marriage Act to state that
the mutual consent of both the parties to divorce does not mean an immediate
decree of divorce should be issued but it lays down a waiting period of 6-18
months during which the parties may change their mind by consultation and
advice from family or friends.
The
Supreme Court in the case Smt. Sureshta Devi vs. Om Prakash has affirmed the
view of the High Courts of Kerala, Punjab and Haryana and Rajasthan. The view
taken by the Kerala High
Court in K.L Mohanan v. Jeejabai, AIR 1988 Kerala 28 and the Punjab and Haryana High Court
in Harcharan Kaur v. Nachhattar Singh,
AIR 1988 Punjab & Haryana 27 and Rajasthan High Court in Santosh
Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128 is
that it is one of the spouses can withdraw the consent given to the petition
any time before the court passes the decree of divorce.
The Supreme Court has overruled the
decisions of the High Courts of Bombay, Delhi and Madhya Pradesh on the ground
that they haven’t laid down the law on the matter properly. Hence, the appeal
was allowed and the decree of divorce was set aside.
The
Supreme Court’s decision to set the decree of divorce aside and allow the
appeal was justified.
According
to Section 13-B of the Hindu Marriage Act, 1955 mutual consent is a very
inalienable condition when it comes to divorce petitions. It states that the
divorce should be mutually consented upon. The High Court of Himachal Pradesh
recorded a finding that the consent given by Smt Sureshta Devi was not under
coercion but out of her free will and decided to grant the decree of
dissolution of marriage but they did not take into consideration the
Sub-Section 2 of Section 13-B which has given a time period of 6 to 18 months
for the dissolution of marriage.
This
duration has been given to provide an opportunity for the parties to mutually
resolve any conflict and reflect upon their move. In this period the parties
may have a change of heart or proof of coercion, fraud or pressure by one of
the divorce parties may be found out. According to the Supreme Court, if the
court has been given the power to decree the divorce after the initial
petition, it negates the idea of mutual consent as the parties may change their
minds and not consent throughout.
The
Court also said that since Sub-section (2) of the Act requires hearing the
consent of both the parties, even if one of the parties withdraws their
consent, the court cannot go forward with the decree of divorce as there is no
longer any mutual consent. The view of High courts of Rajasthan, Kerala, Punjab
and Haryana was upheld; they said that it is open for one of the spouses to
withdraw the consent any time before the court passes the decree of divorce.
The
law in this is mostly clear when it emphasizes the importance of mutual consent
till the time of the passing of the divorce decree and it also clearly lays
down the time for passing of the decree while providing time in case of a
change in decision takes place.
Conclusion
In
the case Smt Sureshta Devi vs Om Prakash the Court set aside the decree of
divorce and decided that consent once given can be withdrawn within the given
time period. It further discussed that the Courts do not have the power to
decide the dissolution of marriage after the initial period and have to
consider the possibility of one of revocation of the consent by one of the
parties later on within the period of 6 to 18 months.
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