ANIL KUMAR JAIN versus MAYA JAIN

Citation: [2009] 14 S.C.R. 90 · Decided: 01-09-2009 · Supreme Court of India · Bench: ALTAMAS KABIR, CYRIAC JOSEPH · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2009] 14 (ADDL.) S.C.R. 90 
ANIL KUMAR JAIN 
v. 
MAYA JAIN 
(CIVIL APPEAL NO. 5952 OF 2009) 
SEPTEMBER 1, 2009 
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.] 
HINDU MARRIAGE ACT, 1955: 
c 
s. 13-8 - Petition for divorce by mutual consent - Couple 
living separately for seven years - Under a settlement, 
husband transfening valuable properly rights in favour of wife 
and the wife enjoying the properly - After registration of 
transfer in favour of wife, she withdrew her consent and still 
0 insisted on living separately - Held: Consent given by parties 
for mutual divorce uls. 13-8 has to subsist till a decree is 
passed and in the event either of the parties withdraws the 
consent before passing of the final decree, petition uls 13-8 
would not survive and will have to be dismissed - However, 
E although irretrievable break down of marriage is not one of the 
grounds u/s 13 or 13 E, the Supreme Court, in special 
circumstanc~s, in exercise of its powers under Article 142 of 
the Constitution, can grant relief to parties without even waiting 
for statutory period of six months. uls 13-8 - But, the doctrine 
of irretrievable breakdown of marriage is not available even 
F to High Court - Other courts are not competent to pass a 
decree for mutual divorce if one of the consenting parties 
withdraws the consent before the decree is passed - Neither 
civil courts nor High Courts can pass order before the periods 
prescribed under the relevant provisions or on grounds not 
G provided for in ss. 13 or 13-8 - Keeping in view the special 
circumstances of the case, the petition for mutual divorce u/s 
13-8 is accepted and in exercise of powers under Article 142 
of the Constitution, on the basis of the joint petition filed by 
parties before trial court, there will be a decree of divorce uls 
H 
90 
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ANIL KUMAR JAIN v. MAYA JAIN 
91 
13-8 - Constitution of India, 1950 - Article 142 - Principle of A 
irretrievable breakdown of marriage. 
The appellant married the respondent on 22.6.1985. 
On 4th September, 2004, the couple filed a joint petition 
for divorce uls.13-8 of the Hindu Marriage Act, 1955 in th~ 8 
district court. On 7th March, 2005 when the matter was 
taken up for hearing, the respondent stated that despite 
serious differences between the couple, she did not want 
the marriage tie to be dissolved. Accordingly, the joint 
petition was dismissed. In the appeal before the High C 
Court the respondent-wife reiterated her stand. 
Consequently, the High Court dismissed the appeal .. 
Aggrieved, the husband filed the appeal. 
The question for consideration before the Court was: 
whether a decree may be passed on a petition for mutual D 
divorce uls. 13-8 of the Hindu Marriage Act, 1955, when 
one of the petitioners withdrew the consent prior to the 
passing of such decree. 
Allowing of the appeal, the Court: 
E 
HELD: 1.1. This Court in Sureshta Devi* held that the 
.. 
consent given by the parties to the filing of a petition uls. 
13-8 of the Hindu Marriage Act, 1955 for mutual divorce 
had to subsist till a decree was passed on the petition and 
that in the event either of the parties withdrew the 
F 
consent before passing of the final_ decree, the petition 
u/s. 13-8 would not survive and would have to be 
dismissed. [Para 8] [99-F-G] 
*Smt. Sureshta Devi vs. Om Prakash (1991) 2 SCC 25 G 
SCR, relied on 
\ 
1.2. Subsequently, however, in Ashok Hurra's** case, 
basing its decision on the doctrine of irretrievable break-
H 
92 
SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. 
A 
down of marriage, the Court was of the view that no 
useful purpose would be served in prolonging the agony 
of the parties to a marriage which had broken down 
irretrievably and that the curtain had to be rung down at 
some stage. The decision in Ashok Hurra's case to invoke 
B the power under Article 142 of the Constitution of India 
was, thereafter, followed in several cases based upon the 
doctrine of irretrievable break-down of' marriage. [Para 9. 
t 
and 10] [99-G-H; 100-A-8; E] 
c 
**Ashok Hurra v. Rupa Bipin Zaveri 1997 (4) SCC 226, 
referred to 
1.3. An analysis of judgments of this Court throws up 
two propositions. The fir~t is that although irretrievable 
break-down of marriage is not one of the grounds 
-.-
D indicated u/s. 13 or 13-8 of the Act, for grant of divorc~, 
the said doctrine can be applied to a proceeding ~er 
either of the said tw-o provisions only where the 
proceedings are before the Supreme Court. In ex rcise 
of

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