Sureshta Devi v. Om Prakash

 

 

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Sureshta Devi v. Om Prakash deals with the issue whether consent once given to the divorce petition can be unilaterally withdrawn by the party or is it irrevocable.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 9^th 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.