NIKHIL KSHEERSAGAR Vs. SWATI KSHEERSAGAR

JUDGEMENT

(1.) The present appeal is filed against the order dtd. 03/09/2022 passed in HMA 845/2021 by the Family Court, Raipur whereby the Family Court has rejected the petition under Sec. 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act, 1955').

(2.) The facts of this case are that an application was filed by the appellant/husband and the respondent/wife under Sec. 13-B of the Act, 1955 seeking mutual divorce on consent. The facts would show that the marriage in between the parties was solemnized on 14/02/2009. After the marriage the couple was blessed with a daughter in the year 2011 and a son in the year 2016. Thereafter, an application seeking mutual divorce was filed on the ground that they could not reside together as there has been a factual and mental breakdown in between the parties and both were not compatible to each other. The application for mutual divorce was filed on 15/11/2021 before the Family Court, Raipur. An application was also filed to condone the cooling period of six months, which was dismissed by an order dtd. 23/02/2022. Subsequently, the respondent on different dates of hearing did not appear. Meaning thereby she did not consent for the mutual divorce. In absence of the respondent/wife, the learned trial Court on 03/09/2022 has dismissed the application under Sec. 13-B of the Act, 1955.

(3.) It is contended on behalf of the appellant that at the time of filing of the divorce petition under Sec. 13-B of the Act, 1955, the wife had already consented for divorce, therefore, in her absence also an application under Sec. 13-B of the Act, 1955 for mutual divorce could have been considered. The perusal of the order-sheet and the appearance of the parties would show that the wife after sometime stopped appearing before the Family Court, meaning thereby eventual consent by way of filing of the petition was not assented. The question, therefore, would arise as to whether it would be open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition. This issue came up for hearing before the Supreme Court in the matter of Smt. Sureshta Devi Versus Om Prakash {(1991) 2 SCC 25} wherein the Supreme Court observed that the consent given by way of filing of petition can be withdrawn till the decree of divorce is passed. The Court at para 13 & 14 has held thus:- (13) From the analysis of the Sec. , 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-sec. (2). There is nothing in the Sec. which prevents such course. The Sec. does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. 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 to snap marital ties. Subsec. (2) of Sec. 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 bona fides 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. (14) Sub-sec. (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the court cannot pass a decree of divorce by mutual consent. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Sec. 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard.