Sureshta Devi v. Om Prakash

A wife who had jointly filed for divorce by mutual consent changed her mind before the second motion, saying her original consent had been extracted under pressure. Her husband argued the deal was already sealed the day both of them told the court, under oath, that they wanted out. The Supreme Court had to decide exactly how long "mutual" has to stay mutual before a marriage can actually be dissolved on that basis.

Parties

Sureshta Devi — appellant/wife; had jointly filed a Section 13-B petition for divorce by mutual consent with her husband, but later withdrew her consent before the second motion and resulting decree.

Om Prakash — respondent/husband; sought to have the divorce decree granted despite the wife's withdrawal of consent, relying on the joint statements recorded at the first motion.

Facts

Sureshta Devi and Om Prakash married on 21 November 1968 and lived together for approximately six to seven months before separating. Sometime later, the parties jointly filed a petition under Section 13-B of the Hindu Marriage Act, 1955 for divorce by mutual consent. On 9 January 1985, the court recorded the statements of both parties in support of the joint petition, as required for the first motion under Section 13-B. Before the second motion could be heard and a decree passed, Sureshta Devi sought to withdraw her consent, alleging that her original consent to the divorce had been obtained under duress and pressure from her husband and his family. The District Judge, on this basis, dismissed the divorce petition following her withdrawal of consent. On appeal, the High Court reversed this decision and granted a decree of divorce by mutual consent, holding, in substance, that consent given and recorded at the first motion was sufficient and could not later be unilaterally withdrawn. Sureshta Devi appealed to the Supreme Court.

Issues Raised

1. Under Section 13-B of the Hindu Marriage Act, must mutual consent to divorce continue to exist at the time the decree is actually passed, or is it sufficient that consent existed and was recorded at the time the joint petition (the first motion) was filed?
2. Can either spouse unilaterally withdraw their consent to a Section 13-B petition at any point before the decree, including during the statutory gap between the first and second motions?
3. If consent is validly withdrawn before the decree, can the court nonetheless proceed to grant a decree of divorce by mutual consent on the strength of the remaining party's continuing wish alone?

Arguments Contended

On behalf of Om Prakash (Respondent/Husband): It was argued that both parties had, under oath, jointly stated their consent to divorce at the time of filing the petition and at the first motion, and that this recorded consent should be treated as final and binding once given, since permitting unilateral withdrawal at any later stage would make the entire mutual-consent procedure needlessly uncertain and would allow a party to use the statutory waiting period tactically, to the prejudice of a spouse who had genuinely and permanently consented to end the marriage.

On behalf of Sureshta Devi (Appellant/Wife): It was argued that Section 13-B expressly requires "mutual" consent, and that the very structure of the section — providing for a mandatory gap of six to eighteen months between the first and second motions, precisely to allow the parties an opportunity to reconsider — presupposes that consent must continue to exist through that period and up to the moment the decree is actually passed; if either party genuinely no longer consents at that later stage, there is no longer the mutual consent Section 13-B requires, and a decree could not properly be passed over the objection of a party whose original consent, in any event, was said to have been obtained under pressure.

Court's Reasoning

The Supreme Court, per Jagannatha Shetty, J., held that the statutory scheme of Section 13-B is deliberately structured to require mutual consent to exist not merely at the time the joint petition is first filed, but continuously, right up to the moment the court actually passes the decree of divorce. The Court reasoned that the mandatory interval of not less than six months and not more than eighteen months between the first and second motions, prescribed by Section 13-B(2), serves a specific and deliberate purpose: it is a "cooling-off" period intended to give the parties a genuine opportunity for reflection and possible reconciliation before their marriage is irrevocably dissolved, and this purpose would be entirely defeated if the consent recorded at the first motion were treated as final and irrevocable, since there would then be no real point to a mandated waiting period during which either party could reconsider.

The Court held that consent under Section 13-B is a positive requirement that must subsist at every stage of the proceeding culminating in the decree, and that either spouse is entitled to unilaterally withdraw their consent at any time before the decree is passed, including during the statutory waiting period between the two motions. Once consent is withdrawn, the essential jurisdictional foundation for a decree of divorce by mutual consent — the continuing, mutual agreement of both parties to dissolve the marriage — ceases to exist, and the court cannot pass a decree on the strength of only one party's continuing wish, however genuine that party's own consent may remain.

Judgement

The Supreme Court allowed Sureshta Devi's appeal, set aside the High Court's decree of divorce, and held that since she had validly withdrawn her consent before the decree was passed, the mutual consent required by Section 13-B no longer existed, and no decree of divorce could be granted on the joint petition.

Legal Principle / Ratio

Mutual consent under Section 13-B of the Hindu Marriage Act, 1955 must continue to exist not merely at the time the joint petition is filed, but throughout the proceeding, right up to the moment the court actually passes the decree of divorce. Either spouse is entitled to unilaterally withdraw their consent at any time before the decree, including during the six-to-eighteen-month statutory interval between the first and second motions; once withdrawn, the court cannot grant a decree of divorce by mutual consent on the strength of only the remaining party's continuing wish.

Significance

Sureshta Devi v. Om Prakash is the leading Indian authority establishing that consent under Section 13-B must survive until the decree itself is passed, and remains the standard citation for the proposition that either spouse retains an unrestricted right to withdraw from a mutual-consent divorce petition at any point before the decree. It is regularly read alongside Amardeep Singh v. Harveen Kaur (2017), which addresses the closely related but distinct question of whether the mandatory waiting period between the two motions can itself be waived where reconciliation is genuinely impossible — together the two cases define both the substantive requirement (consent must persist) and the procedural flexibility (the waiting period, unlike consent itself, can sometimes be dispensed with) governing mutual-consent divorce under the Act.

Exam-Important Points

• Facts in one line: a wife withdrew her consent to a joint Section 13-B divorce petition after the first motion but before the decree; the Supreme Court held the decree could not be granted.
• Holding: mutual consent under Section 13-B must continue until the decree is actually passed — either spouse can withdraw consent unilaterally at any time before that, including during the statutory gap between motions.
• Key principle: the six-to-eighteen-month gap between motions is a deliberate "cooling-off" period meant to allow reconsideration — a rule requiring irrevocable consent at the first motion would defeat this purpose entirely.
• Classic exam trap: students sometimes think consent recorded at the first motion is binding and final — this case establishes the opposite: consent must be genuine and continuing right up to the decree.
• Always read together with Amardeep Singh v. Harveen Kaur (2017) — the waiting period itself (unlike consent) can be waived in appropriate cases; don't confuse the two distinct rules.

Facts, bench and citation verified against IndianKanoon's report of the Supreme Court judgment and independent case-law summaries (Legal Bites, CaseMine, Legal Wires) — the citation (1991) 2 SCC 25, the bench (Jagannatha Shetty and Agrawal, JJ.), and the 7 February 1991 decision date are confirmed across sources.