LexHITESH BHATNAGAR versus DEEPA BHATNAGAR
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A B [2011) 6 S.C.R. 118 HITESH BHATNAGAR v. DEEPA BHATNAGAR (Civil Appeal No. 6288 of 2008) APRIL 18, 2011 [D.K. JAIN AND H.L. DAnu, JJ.] '-· Hindu Marriage Act, 1955 - s. 138 - Petition for divorce by mutual consent - Withdrawal of consent - Whether the C consent Once given can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with s.138(1); and whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the D parties, and If so, under what circumstances - Held: The language employed in s. 138(2) is clear- If the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of dlvon:e by mutual consent - Besides, from the language of the Section, as well as the E settled law, it is clear that one of the parties may withdraw consent at any time before the passing of the decree - The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties - Unless there is a complete agreement between husband and wife for the F dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent - Otherwise, the expression 'divorce by mutual consent' would be otiose - In the present fact scenario, the second motion was never made by both the parties as mandatorily required under the law, and no Court can pass a G decree of divorce in the absence of that - The eighteen month period is specified only to ensure quick disposal of cases of divorce by mutual consent, and not to sPec/fy the time period for withdrawal of consent - Non-withdrawal of H 118 HITESH BHATNAGAR v. DEEPA BHATN,AGAR 119 consent before expiry of the said eighteen months has. no· A bearing. Constitution of India, 1950 - Article 142 ... Power under - Exercise of .. Prayer ·of appellant-husband before Supmme Court that his marriage with respondent-wife had irretrievably 8 broken down and the Court should dissolve the marriage by exercising its jurisdiction under Article 142 - Held: The power under Article 142 is plenipotentiary - However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be obsetved while exercising this jurisdiction C - This Court uses its extraordinary power to dissoive a marriage as having irretrievably broken down only when it is impossible to save the marriage and all efforts made in that regard would, to the mind of the Court, be counterproductive ""' Even if the chances are infinitesimal for the marriage to D survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably - In the present case, in light of the facts anti circumstances, it would be travesty of justice to dissolve the marriage as having broken down .... Though there is bitterness E amongst the parties and they have not even lived as husband and wife for the past about 11 years, it is hoped that they will give this union another chance, if not for themselves, fOr the future of their daughter. The appellant-husband and the respondent-wife had got married according to the Hindu Marriage Act, 1955. Th' parties filed a petition under Section 138 of th• Act F for dissolution of the marriage by grant of a decree of divorce by mutual consent However; before the stage of G second motion and passing of the decree of divorce, the respondent withdrew her consent by filing an appllcation. The withdrawal of consent was after a period of elghtee" months of filing the petition and· In view of this, the petition came to be dismissed by the trial court; thoug~ H 120 SUPREME COURT REPORTS [2011) 6 S.C.R. A the appellant insisted for passing of the decree. The appellant, being aggrieved, filed appeal before the High Court, which was dismissed, In the Instant appeal, the questions that arose for · 8 consideration were: 1) whether the consent once given In a petition for divorce by mutual consent can be ' subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition· in accordance with Section 138 (1) of the Hindu C Marriage Act, 1955; and 2) whether the Court can grant a decree of divorce by mutual consent when the
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