LexSMRUTI PAHARIYA versus SANJAY PAHARIYA
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[2009] 8 S.C.R. 631 -J SMRUTI PAHARIYA A v. SANJAY PAHARIYA (Civil Appeal No. 3465 of 2009) MAY 11, 2009 B [K.G. BALAKRISHNAN, CJI., P. SATHASIVAM AND t ASOK KUMAR GANGULY, JJ.] Hindu Marriage Act, 1955: c s. 138 (2) - Decree for divorce by mutual consent - Grant of, by Family Court - Absence of husband on three dates - Held: Family Court acted contrary to the avowed object of the ---'<f Act - It granted divorce on presumption of continuing consent of husband - It was passed within three weeks from expiry of D the mandatory period of six months without actually ascertaining consent of husband - More so, decree of divorce was vitiated by procedural irregularity - Court directed substituted service u/o_ 5 r. 20 in absence of its own satisfaction that husband is evading service - On application of wife, it E pre-paned the date of final hearing and passed ex-parte decree on that day itself by treating the matter on the board • - Family Court did not discharge its statutory obligation u/ ~ s. 138 (2) of hearing the parties - Court's proceeding must i.yve sanctity and fairness - It cannot be conducted for the F convenience of one party alone - This is flagrant abuse of judicial process - Thus, decree for divorce set aside - Family Courts Act, 1984 - Code of Civil Procedure, 1908 - 0. 5 r. 20 - Judicial process. s.138 (2) - Divorce by mutual consent - Construction of G - Held: In cases u/s. 138, mutual consent of the parties is a jurisdictional fact - Decree for divorce uls. 138 can be passed only on the continued mutual consent of the parties - If petition 631 H 632 SUPREME COURT REPORTS (2009] 8 S.C.R. ';.. A for divorce is not formally withdrawn and is pending then on the date when Court grants the decree, it has a statutory obligation to hear parties to ascertain their consent - From the absence of one of the parties for two to three dates, Court cannot presume his/her consent - Court while passing its B decree u/s. 138 would be slow and circumspect before it can infer the existence of such jurisdictional fact - It has to be satisfied about the existence of mutual consent between the parties on some tangible materials. c The questions which arose for consideration in this appeal are: (i) whether impugned decree of divorce passed by the Family Court is vitiated by procedural irregularity; D (ii) whether the Family Court acted contrary to the y- avowed object of the Family Courts Act, 1984 while conducting the proceeding; (iii) whether from the absence of the husband before E the Family Court on three dates it could J>e inferred that his consent for grant of divorce on a petition on mutual consent subsists, even though he has not withdrawn the petition for divorce on mutual • consent; -\. F (iv) whether on a proper construction of section 138 (2) of the Hindu Marriage Act, this Court can hold that the Family Court can dissolve a marriage and grant a decree of divorce in the absence of one of the parties and without actually ascertaining the consent G of that party who filed the petition for divorce on mutual consent jointly with the other party? Disposing of the appeal, the Court HELD: 1.1. The Family Courts Act, 1984 was enacted H for adopting a human approach to the settlement of SMRUTI PAHARIYA v. SANJAY PAHARIYA 633 . ..j family disputes and achieving socially desirable results. A Section 9 of the Act casts a duty upon the Family Court Judge to assist and persuade the parties to come to a settlement. The Family Court did not act in a manner which was required of it having regard to the jurisdiction vested on it under the Family Courts Act. It appears that B the Family Court granted the decree of divorce by -t proceeding on the presumption of continuing consent of the husband. As regard the procedural irregularity in the matter, the Family Court did not act properly even if it is held that it was correct in presuming the continuing c consent of the respondent-husband. [Paras 10, 11, 17, 18 and 19] [641-E; 643-C] 1.2. On 19.11.2007 when the matter came up before ~ .. the Family Court, the first day after the mandatory period D of six months, the husband was absent. The Court dire~ted §ep1ice pf summons on the husband on the request Qf the wif~, Ttie service was returned before the Court on 1.12.2007, Looking at the service return, the Court found that service was not a proper one and the Court was also not sat
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