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Ashwin Panicker 1475 IV Semester FAMILY LAW II INTERNALS Question: Rajeev and Reshma, a Hindu couple were living separately for nearly 5 years owing to incompatibility of their temperaments. On Rajeev’s suggestion, Reshma agreed to seek divorce by mutual consent and they filed a petition for divorce under section 13-B of the Hindu Marriage Act, 1955. However after 6 months, Reshma refused to go to court again with Rajeev, saying that she had changed her mind as she did not wish to lead the life of divorcee. Rajeev prays to the court that divorce be granted to him on the basis of first petition. Analyse the situation with relevant legal provisions and case laws in this regard. Answer: Divorce by Mutual Consent has emerged as one of the most sought after modes of obtaining divorce in the recent times. Rajiv and Reshma filed for divorce under Section 13B of the Hindu Marriage Act, 1955 which enumerates the law pertaining to divorce by mutual consent. One of the basic essential ingredient to obtain divorce through mutual consent is that both the parties i.e. husband and wife mutually agree to obtain divorce. Essential Ingredients of Section 13B of the Act:

A divorce petition is presented by both the parties before the District Court.

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The provision applies to marriages solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

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The parties to the marriage should have been living separately for a period of one year or more.

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The parties should satisfy the Court that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

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Period of Interregnum- The petition should not have been withdrawn within six months after the date of the presentation of the petition and not later than eighteen months after the said date.

In Suman v Surendra Kumar1, the Rajasthan High Court answered the question of why period of interregnum is given. It is intended to give time and opportunity to the parties to reflect on their move. In this transitional period either of the parties or both of them may have second thoughts. Procedure of Divorce by Mutual Consent:1 AIR 2003 Raj 155

1. 2. 3. 4. 5. 6. 7.

First Motion involves joint filing of divorce petition. Husband and Wife appear before Court to record statements after filing of petitions. Court examines petition, documents, tries reconciliation, records statements. Court passes order of First Motion. Cooling off period of 6 months given to couple by Court to rethink decision. Filing of Second Motion is done within 18 months of First Motion. Decree of Divorce is passed by the Court.

In Rajeev and Reshma’s case, the 5th step is over which means the cooling off period is completed. Now the question is whether any of the parties can step back or resile from undertaking for divorce given under Section 13B (1) of the Hindu Marriage Act, 1955. Is Reshma allowed to withdraw consent after the passing of First Motion? In the cases of Shikha Bhatia vs. Gaurav Bhatia & Ors. and Avneesh Sood vs. Tithi Sood, the Delhi High Court had opined that a spouse, who gives an undertaking to the court to abide by the consent given in the First motion for dissolution of marriage under Section 13B (1) of the Act and for moving a Second motion petition, cannot be permitted to resile from such an undertaking on the basis of an agreement arrived at between the parties. In Rajiv Chhikara vs. Sandhya Mathu , the Division Bench of Delhi High Court opined that resiling from a settlement amounts to mental cruelty. Hence in such circumstance one spouse insists of retaining the matrimonial bond then the same would be like putting the spouse under intense situation of mental cruelty. On the other hand, the Kerala High Court, Punjab and Haryana High Court and Rajasthan High Court held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the court passes a decree of divorce. In Smt. Sureshta Devi vs. Om Prakash 2, on interpreting Section 13B(2) of the Act and analyzing the divergent views expressed by different High Courts, the Supreme Court approved the view expressed by the High Courts of Kerala, Punjab & Haryana High Court and Rajasthan on the interpretation of Section 13B(2) of the Act and held: That 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 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. 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 2 1991 SCR (1) 274

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 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 bonafides 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. In Smruti Pahariya vs. Sanjay Pahariya3, wherein the Apex Court endorsing the decision in Sureshta Devi case stated 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. It was also opined that courts cannot presume consent of a party merely because both the parties are signatories to the First motion under Section 13B of the Act. So it is established now that Reshma is very well within her rights to withdraw her consent at any stage before the decree of divorce is passed. Now the next question is would the reason for withdrawal make any difference. Would the Reason for Withdrawal by Reshma make any Difference? In Rajesh R Nair vs. Meera Babu , the Division Bench of Kerala High Court held that it is not for the court to probe into the bona fides or reasonableness of withdrawal of consent and once consent is withdrawn, the only option available to the Court is to close the matter at that stage. Whether Contempt proceedings can be initiated against Reshma for withdrawing consent? The answer is yes as reiterated in Dinesh Gulati vs. Ranjana Gulati, wherein the appellant husband took recourse to contempt proceedings against the respondent/wife on a grievance that despite a mutual consent recorded before the Family Court to dissolve their marriage, the wife was not cooperating with the husband. Also in the cases of Shikha Bhatia vs. Gaurav Bhatia & Ors. And Avneesh Sood vs. Tithi Sood, the Delhi High Court, it was held any attempt to resile there from after giving consent in the First Motion would amount to a breach of the undertaking accepted by the court and therefore, attract contempt proceedings. Does this mean Rajeev will not be granted divorce at all? No, Rajeev will not be able to avail divorce by mutual consent in the absence of Reshma’s consent but if he feels the irreconcilable differences cannot be fixed, he can always pursue contested divorce. In which case the following procedure has to be adhered to: 1. Filing of petition by Rajeev. 3 2009 (8 ) SCR 631

2. 3. 4. 5. 6.

Court issues summons and seeks reply from Reshma. Court may suggest reconciliation. Examination and cross examination of witnesses and evidence. Counsels for both parties can present final arguments. Decree of divorce passed by the Court....