Sureshta Devi V. Om Prakash summary

SURESHTA DEVI Vs. OM PRAKASH 


SUPREME COURT OF INDIA

1992

UNILATERAL WITHDRAW OF THE CONSENT AFTER FILING THE PETITION FOR DIVORCE BY MUTUAL CONSENT UNDER SECTION 13B OF HINDU MARRIAGE ACT

Facts of the case : 

The appellant was married to the respondent. Later both of them filed the petition for divorce by mutual consent under section 13B of HINDU MARRIAGE ACT (HMA). Court recorded the statement of both the parties and left the matter there. After some time the wife filed the application in the court, inter alia, stating that her earlier consent was taken by the force. Therefore she plead against the dissolution of marriage. 

Question before the court : 

Whether the consent freely given by both the parties for divorce by mutual consent under section 13B can be revoked later by one party unilaterally or is it irrevocable. 

JUDGEMENT :

The trial court found that the earlier consent of the wife was not under any type of force or coercion and was completely free. However considering the fact that the wife now revoked her consent to the petition for divorce under mutual consent, therefore the decree cannot by passed for the dissolution of marriage under section 13B of HMA.
High Court, on the appeal, reverse the order of the trial court and observed that once the consent was freely given for dissolution of marriage under section 13B i.e. divorce by mutual consent, the consent later cannot be unilaterally revoked by any party. 
The Supreme Court however took an opposite view. While analysing the section 13B of the Act, the court observed that mutual consent is necessary throughout the proceedings. It is well known to the parties that divorce decree will not be granted as soon as they file the petition for the same on mutual consent, but it is granted only after 6 months and before 18 months of filings the petition for the same. The time period in between is given for the spouses to reconsider their position and consult their family and friends for the same. In this course, the spouse can change thier mind and revoke thier consent and nothing in section 13B provides for contrary. Therefore, even if any one spouse withdraw the consent, the court can not grant the decree of divorce on the grounds of mutual consent. 
Therefore, the appeal is allowed and decree for divorce is reversed.  



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