Sureshta Devi v. Om Prakash

A wife and husband filed a joint petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. The wife then told the court her consent had been obtained under pressure and threat. The Supreme Court held that a spouse can withdraw consent at any time before the decree is passed.

Quick Revision

Parties

Smt. Sureshta Devi — appellant; the wife. She withdrew her consent to the joint divorce petition.

Om Prakash — respondent; the husband. He wanted the decree of divorce by mutual consent to stand.

Procedural History

1. Both spouses moved a petition under Section 13-B for divorce by mutual consent in the District Court at Hamirpur. The Court recorded their statements on 9 January 1985.
2. On 15 January 1985 the wife applied to the District Court. She said her statement of 9 January 1985 was obtained under pressure and threat. She asked that the petition be dismissed.
3. The District Judge made certain orders. They were taken up in appeal before the High Court. The High Court sent the matter back to the District Judge for fresh disposal.
4. The District Judge then dismissed the petition for divorce.
5. On appeal, the Himachal Pradesh High Court reversed that order and granted a decree of dissolution by mutual consent. The order is dated 1 August 1989 in F.A.O. (H.M.A.) No. 28 of 1989.
6. The High Court held that a spouse who has given consent cannot unilaterally withdraw it. Withdrawal would not take away the court's jurisdiction to dissolve the marriage if the consent was otherwise free.
7. The High Court also found that the wife gave consent without force, fraud or undue influence. It held she was bound by that consent.
8. The wife appealed to the Supreme Court in Civil Appeal No. 633 of 1991. Special leave was granted.

Facts

1. The appellant is the wife of the respondent. They married on 21 November 1968.
2. They lived together for about six to seven months.
3. After that, the wife did not stay with the husband except from 9 December 1984 to 7 January 1985. That stay was under a Court order. It seems they did not live as husband and wife even then.
4. On 8 January 1985 both came to Hamirpur. The wife was accompanied by her counsel, Shri Madan Rattan.
5. After about an hour of discussion they moved a petition for divorce by mutual consent under Section 13-B in the District Court at Hamirpur.
6. On 9 January 1985 the Court recorded the statements of the parties and left the matter there.
7. On 15 January 1985 the wife applied to the Court. She said her statement of 9 January 1985 was obtained under the pressure and threat of the husband.
8. She said she was not allowed to see or meet her relatives to consult them before filing the petition. They were also not allowed to accompany her to the Court.
9. She said she would not be a party to the petition and prayed for its dismissal.

Issues Raised

1. Can a party to a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 unilaterally withdraw the consent?
2. Or is the consent, once given, irrevocable?
3. Is it open to one of the parties, at any time until the decree of divorce is passed, to withdraw the consent given to the petition?

Arguments Contended

The reported judgment does not set out the arguments of counsel for either side. It records the positions below.

For the appellant (wife), as recorded

• Her statement of 9 January 1985 was obtained under the pressure and threat of the husband.
• She was not allowed to see or consult her relatives before the petition was filed.
• She was not a party to the petition and asked for its dismissal.

For the respondent (husband), as recorded

• The judgment records no separate argument of the husband.
• The High Court's view, which favoured him, was that consent cannot be unilaterally withdrawn. Withdrawal does not take away the court's jurisdiction if the consent was otherwise free.

Conflicting High Court views discussed by the Court

• Bombay High Court (Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bom. 302): the crucial time for consent is when the petition is filed. A voluntarily given consent cannot be nullified by withdrawal.
• That Court drew support from Order XXIII Rule 1 of the Code of Civil Procedure. Under it, a suit filed jointly cannot be abandoned or withdrawn by one plaintiff alone.
• Delhi High Court (Smt. Chander Kanta v. Hans Kumar and Anr., AIR 1989 Delhi 73) and Madhya Pradesh High Court (Meena Dutta v. Anirudh Dutta, [1984] 11 DMC 388) took a similar view.
• Kerala High Court (K.L. Mohanan v. Jeejabai, AIR 1988 Kerala 28), Punjab and Haryana High Court (Harcharan Kaur v. Nachhattar Singh, AIR 1988 P&H 27) and Rajasthan High Court (Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128) took the contrary view. One spouse may withdraw consent at any time before the decree.
• These courts said the court's satisfaction after inquiry into the genuineness of consent contemplates an opportunity for either spouse to withdraw. The Kerala High Court in particular ruled out the analogy of Order XXIII Rule 1, since it is dissimilar to Section 13-B.

Court's Reasoning

Opinion of K. Jagannatha Shetty, J. (for the Court)

1. Noted: The appeal concerns the validity of a decree dissolving a marriage by mutual consent. It raises an important issue: can a party withdraw consent, or is consent irrevocable?
2. Noted: Section 13-B was not in the original Act. The Amending Act 68 of 1976 introduced it.
3. Noted: Section 13-B(1) allows both parties together to present a petition to the district court. The ground is that they have been living separately for one year or more, have not been able to live together, and have mutually agreed to dissolve the marriage.
4. Noted: Section 13-B(2) provides for a motion of both parties, made not earlier than six months and not later than eighteen months after the petition is presented. It applies if the petition is not withdrawn in the meantime.
5. Noted: On that motion the Court hears the parties and makes the inquiry it thinks fit. It must be satisfied that the marriage was solemnized and the averments are true. It then passes a decree dissolving the marriage.
6. Noted: Section 23(1)(bb) requires the Court to be satisfied, where divorce is sought on mutual consent, that the consent was not obtained by force, fraud or undue influence.
7. Noted: Section 13-B is in pari materia (on the same subject) with Section 28 of the Special Marriage Act, 1954.
8. Noted: Under sub-section (1), the petition must be presented jointly by both parties. Under sub-section (2), the motion for hearing the petition must also be made by both parties.
9. Noted: Sub-section (1) has three requirements. The parties must have been living separately for one year. They must not have been able to live together. They must have mutually agreed that the marriage should be dissolved.
10. Noted: The one year of living separately must immediately precede the presentation of the petition.
11. Held: The expression living separately means not living like husband and wife. It has no reference to the place of living.
    Why: The parties may live under one roof by force of circumstances and yet not live as husband and wife. They may live in different houses and yet live as husband and wife. What is necessary is that they have no desire to perform marital obligations. They must have lived separately with that attitude for one year before the petition.
12. Noted: The second requirement, that they have not been able to live together, seems to indicate the concept of a broken down marriage where reconciliation is not possible.
13. Noted: The third requirement is that they have mutually agreed that the marriage should be dissolved.
14. Noted: Under sub-section (2) the parties must make a joint motion in the 6 to 18 month window. The motion lets the Court satisfy itself about the genuineness of the averments and whether consent was obtained by force, fraud or undue influence.
15. Noted: The Court may make such inquiry as it thinks fit, including hearing or examining the parties. If satisfied that consent was not obtained by force, fraud or undue influence and the parties have mutually agreed, the Court must pass a decree of divorce.
16. Noted: The question is whether one party may withdraw the consent at any time until the decree is passed. A detailed study was needed because the High Courts do not speak with one voice.
17. Noted: The Bombay High Court in Jayashree Ramesh Londhe held that the crucial time for consent is the filing of the petition. It drew support from Order XXIII Rule 1 of the Code of Civil Procedure.
18. Noted: The Delhi High Court in Chander Kanta and the Madhya Pradesh High Court in Meena Dutta took a similar view.
19. Noted: The Kerala High Court in K.L. Mohanan, the Punjab and Haryana High Court in Harcharan Kaur and the Rajasthan High Court in Santosh Kumari took the contrary view.
20. Noted: Those High Courts held that a spouse may withdraw consent before the court passes the decree. They said the court's inquiry into the genuineness of consent contemplates that either spouse may withdraw it.
21. Noted: The Kerala High Court ruled out the analogy of Order XXIII Rule 1 of the Code of Civil Procedure, because it is dissimilar to the situation under Section 13-B.
22. Held: Filing the petition with mutual consent does not authorise the court to make a decree for divorce.
    Why: There is a waiting period of 6 to 18 months. It was obviously intended to give the parties time to reflect and seek advice from relations and friends.
23. Noted: In this transitional period one party may have a second thought and decide not to proceed. That spouse may decline to join the motion under sub-section (2).
24. Noted: Nothing in the section prevents this. The section does not say that a change of mind must be by both parties and not by one alone.
25. Held: The approach of the Bombay and Delhi High Courts, that the crucial time is the filing of the petition, is untenable.
    Why: At the time of the petition the parties know that it does not by itself end the marriage. They know a further step is needed to end the marriage.
26. Noted: Sub-section (2) is clear on this. It makes the decree depend on a motion of both parties and on the petition not being withdrawn in the meantime.
27. Held: There must also be mutual consent when the parties move the court for a decree. The Court must also be satisfied about the bona fides and the consent of the parties.
28. Held: If there is no mutual consent at the time of the inquiry, the court gets no jurisdiction to make a decree for divorce.
    Why: Otherwise the court could pass a divorce decree at the instance of one party and against the consent of the other. Such a decree cannot be regarded as a decree by mutual consent.
29. Noted: Sub-section (2) requires the Court to hear the parties, which means both parties.
30. Held: If one party says consent is withdrawn, or that they are not willing, the Court cannot pass a decree of divorce by mutual consent.
31. Held: If the Court could make a decree solely on the initial petition, it would negate the whole idea of mutuality and consent for divorce.
32. Held: Mutual consent is a sine qua non (an essential condition) for a decree under Section 13-B. The Court said: "Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B." Mutual consent should continue until the divorce decree is passed. It is a positive requirement for the court to pass a decree.
33. Noted: The Court cited the English rule: "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard". It cited Halsbury's Laws of England (4th Ed., Vol. 13, paragraph 645), Rayden on Divorce (12th Ed., Vol. 1, p. 291) and Beales v. Beales [1972] 2 All E.R. 667 at 674.
34. Held: The interpretation of the Kerala, Punjab and Haryana and Rajasthan High Courts is correct, and the Court affirms it.
35. Held: The decisions of the Bombay, Delhi and Madhya Pradesh High Courts did not lay down the law correctly. They stand overruled.

Authorities

• K.L. Mohanan v. Jeejabai, AIR 1988 Kerala 28: one spouse may withdraw consent before the decree. Approved. The Kerala High Court also rejected the Order XXIII Rule 1 analogy.
• Harcharan Kaur v. Nachhattar Singh, AIR 1988 P&H 27: same view. Approved.
• Santosh Kumari v. Virendra Kumar, AIR 1986 Raj. 128: same view. Approved.
• Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bom. 302: crucial time for consent is the filing of the petition. Overruled.
• Smt. Chander Kanta v. Hans Kumar and Anr., AIR 1989 Delhi 73: similar view. Overruled.
• Meena Dutta v. Anirudh Dutta, [1984] 11 DMC 388 (MP): similar view. Overruled.
• Beales v. Beales, [1972] 2 All E.R. 667 at 674: referred to for the rule that consent must continue to decree nisi. Also cited: Halsbury's Laws of England, 4th Ed., Vol. 13, paragraph 645, and Rayden on Divorce, 12th Ed., Vol. 1, p. 291.

Provisions

• Section 13-B(1) (written Section 13B in later cases), Hindu Marriage Act, 1955: both parties together may petition the district court for divorce. The ground is one year of living separately, inability to live together and mutual agreement to dissolve.
• Section 13-B(2): on the motion of both parties, made 6 to 18 months after the petition, if it is not withdrawn meanwhile, the Court satisfies itself and passes a decree.
• Section 23(1)(bb): where divorce is sought on mutual consent, the Court must be satisfied that consent was not obtained by force, fraud or undue influence.
• Section 28, Special Marriage Act, 1954: the corresponding provision, with which Section 13-B is in pari materia.
• Order XXIII Rule 1, Code of Civil Procedure: a jointly filed suit cannot be abandoned or withdrawn by one plaintiff. Discussed by the High Courts, not applied by this Court.
• Amending Act 68 of 1976 (Marriage Laws (Amendment) Act, 1976): introduced Section 13-B.

Judgement

1. The appeal is allowed.
2. The decree for dissolution of the marriage is set aside.
3. There is no order as to costs.
4. The Court affirmed the view of the Kerala, Punjab and Haryana and Rajasthan High Courts. The Bombay, Delhi and Madhya Pradesh decisions stand overruled.

Legal Principle / Ratio

Filing a joint petition under Section 13-B does not dissolve the marriage. Mutual consent must exist when the parties move the court for the decree and when the court inquires. One spouse can therefore withdraw consent before the decree, and then the court cannot pass a decree by mutual consent.

Key holding: "Mutual consent should continue till the divorce decree is passed."

Subsequent Treatment

Hitesh Bhatnagar v. Deepa Bhatnagar

• Civil Appeal No. 6288 of 2008, Supreme Court of India, D.K. Jain and H.L. Dattu, JJ., 18 April 2011. The wife withdrew consent before the second motion (the joint motion under Section 13-B(2)). The Court said the question of withdrawal was no longer open, and that Sureshta Devi holds the field (paragraph 8 of that judgment). It held that one party may withdraw consent at any time before the decree (paragraph 15).
• In Hitesh Bhatnagar the husband argued that the court had to grant divorce because consent was not withdrawn within 18 months. The Court rejected this in light of Sureshta Devi (paragraph 13). It held that the eighteen months only ensure quick disposal and do not fix a time for withdrawal (paragraph 16).
• Hitesh Bhatnagar noted passing remarks in Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226. That case said some observations in Sureshta Devi seemed very wide and might need reconsideration (paragraph 10). Hitesh Bhatnagar held those remarks were limited to the facts of that case. It held that the ratio of Sureshta Devi still holds the field (paragraph 11).
• Hitesh Bhatnagar also noted that a three-Judge Bench in Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, approved Sureshta Devi. That Bench said mutual consent is a jurisdictional fact under Section 13-B, and that no counsel argued for reconsideration (paragraph 12).

Shilpa Sailesh v. Varun Sreenivasan

• Transfer Petition (a request to move a case to another court) (Civil) No. 1118 of 2014, Supreme Court (Constitution Bench), Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari, JJ., 1 May 2023. Khanna, J. described Hitesh Bhatnagar as relying on Sureshta Devi for the rule that a party may withdraw consent at any stage before the decree. It also noted the approval in Smruti Pahariya (paragraph 35 of that judgment).
• That Bench read down Hitesh Bhatnagar and some other decisions only in the context of the Court's power under Article 142(1) to do complete justice (paragraph 40). Paragraph 40 does not mention Sureshta Devi by name.

Other later cases (not summarized)

• Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338 (three-Judge Bench): known only through the passages quoted in Hitesh Bhatnagar.
• Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226: known only through the passage quoted in Hitesh Bhatnagar.

Critical Analysis

Analysis based on the judgment text.

• The Court did not decide whether the wife's consent was in fact obtained under pressure. The decision turns on withdrawal, not on the High Court's finding that consent was free.
• The Court says consent can be withdrawn at any time until the decree. It does not say whether withdrawal is allowed after the 18-month limit in Section 13-B(2). That point is not discussed.
• The Court cites Order XXIII Rule 1 only as the reasoning of the Bombay High Court and the answer of the Kerala High Court. It does not itself say whether the analogy applies.
• The ruling protects the party who changes mind. The judgment does not discuss protection for the spouse who still wishes to end the marriage.

Significance

• The Supreme Court settled a conflict among High Courts on whether consent to a Section 13-B petition is revocable.
• It overruled the Bombay, Delhi and Madhya Pradesh decisions and approved the Kerala, Punjab and Haryana and Rajasthan decisions.
• It explained the three requirements of Section 13-B(1) and the meaning of "living separately".
• Later, the Supreme Court said this ratio holds the field (Hitesh Bhatnagar, 2011). See Subsequent Treatment.

Exam-Important Points

• Rule: mutual consent must continue until the decree is passed. Trap: consent given when the petition is filed is not enough.
• Filing the petition does not authorise a decree. The parties must make a joint motion 6 to 18 months later.
• If one party withdraws consent, the Court cannot pass a decree by mutual consent. It gets no jurisdiction.
• Three requirements of Section 13-B(1): living separately for one year; unable to live together; mutual agreement.
• "Living separately" means not living like husband and wife. Trap: it does not mean living in different places.
• Section 23(1)(bb): consent must not be obtained by force, fraud or undue influence.
• Overruled: Bombay (Jayashree Londhe), Delhi (Chander Kanta) and Madhya Pradesh (Meena Dutta). Approved: Kerala, Punjab and Haryana, Rajasthan.
• Result: appeal allowed, decree set aside, no order as to costs.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so none are cited for it. The citation block (SCC, AIR, SCR) is printed in the judgment file header; the appeal number is from the judgment text.