SMT. SURESHTA DEVI versus OM PRAKASH

Citation: [1991] 1 S.C.R. 274 · Decided: 07-02-1991 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

A 
SMT. SURESHTA DEVI 
v. 
OM PRAKASH 
FEBRUARY 7, 1991 
B 
[K. JAGANNATHA SHETTY AND S.C. AGRAWAL, JJ.] 
c 
Hindu Marriage Act, 1955: Section 13-B and 23(J)(bb)-Divorce 
by mutual consent-Filing of a petition under section 13-B( 1) does not 
'r- -
by itself snap marital ties-Parties are required to file a joint motion 
under Section 13-B(2)-Joint Motion before the Court for hearing of the peti-
tion should be 'of both the parties'-Mutual consent should continue till 
.r 
passing of decree-A spouse can unilaterally withdraw his consent 
.... _ 
before passing of the divorce decree-Requirements of Section 13-B 
explained-Expression 'living separately' and 'have not been able to live 
together'-Scope and meaning of. 
'y _ 
D 
Special Marriage Act, 1954: Section 28. 
E 
F 
The appellant-wife and the respondent-husband filed a petition 
under section 13-B of the Hindu Marriage Act, 1955 for divorce by 
mutual consent in the District Court and their statements were 
recorded. Subsequently, the appellant filed an application in the Court 
for dismissal of the petition stating that she was not willing to be a party 
to the petition and that her statement was obtained under threat and 
pressure of husband. The District Judge dismissed the petition but on 
appeal the High Court reversed the order of the District Judge and 
granted a decree of divorce by holding that the consent to a petition for 
divorce by mutual consent cannot be unilaterally withdrawn and such a 
withdrawal would not take away the jurisdiction of the Court, if the 
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consent was otherwise free; and since the wife's consent was without 
-,,.-
any force, fraud or undue influence she was bound by the consent. -
..,. 1 
Hence this appeal by the wife. 
Allowing the appeal and setting aside the decree of divorce, this 
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G 
Court, 
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HELD: 1. An analysis of Section 13-B makes it apparent that the 
filing of the petition under section 13-B(l) with mutual consent does not '>----· 
authorise the Court to make a decree for divorce. The parties are 
required to make a joint motion under sub-section (2) which should not 
H 
be earlier than six months after the date of presentation of the petition 
274 
SURESHTA DEVI v. OM PRAKASH 
275 
and not later than 18 months after the said date. This motion enables 
the Court to proceed with the case in order to satisfy itself about the 
genuineness of the averments in the petition and also to f'md out 
whether the consent was not obtained by force, fraud or undue influ-
ence. The Court may make such inquiry as it thinks fit including the 
hearing or examination of the parties for the purpose of satisfying itSelf 
whether the averments in the petition are true. If the Court is satisfied 
· that the consent of the parties was not obtained by force, fraud or 
undue influence and they have mutually agreed that the marriage 
should be dissolved, it must pass a decree of divorce'. [280D, 279C-D] 
2. The period of waiting from 6 to 18 months referred to in 
section 13-B(2) is intended to give time and opportunity to the parties to 
reflect on their move and seek advice from relations and friends. In this 
transitional period one of the parties may have a second thought and 
~ 
/ change the mind not to proceed with the petition i.e. it may not be a 
party to the joint motion under sub-section (2). This sub-section 
requires the Court to hear the parties which means both the parties. 
But the section does not provide that if there is a change of mind. it 
should not be by one party alone, but by both. Therefore, if one of the 
parties at that stage withdraws its consent the Court cannot pass a 
decree of divorce by mutual consent. If the Court is held to have the 
power to make a decree solely based on the initial petition, it nega-
'\....---J..,. 
tes the whole idea of mutuality and consent for divorce. Mutual con-
sent to the divorce is a sine qua non for passing a decree for divorce 
under section 13-B. Mutual consent should continue till the divorce 
decree is passed. It is a positive requirement for the Court to pass 
a decree of divorce. [280D, 281A-B] 
K.1. Mohanan v. Jeejabai, A.I.R. 1988 Ker. 28; Harcharan Kaur 
A 
B, 
c 
D 
E 
-, 
v. Nachhattar Singh, A.I.R. 1988 P & H. 27 and Santosh Kumari v. 
F 
Y - Virendra Kumar, A.I.R. 1986 Raj. 128; approved. 
Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, A.I.R. 
1984 Bom. 302; Smt. Chander Kanta v. Hans Kumar and Anr., A.I.R. 
1989 De. 4 73; and Meena Dutta v. Anirudh Dutta, 1984

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