Case Title: Smt. Pinki v. Pushpendra Kumar [FIRST APPEAL No. – 155 of 2011]
The Allahabad High Court has held that the Family Court cannot grant divorce based only on earlier consent given at the time of filing the divorce petition if the consent was withdrawn at a later stage in the divorce proceedings.
The Court observed that “it is true that after filing of a Written Statement, no further Written Statement may arise (at the instance of the defendant), by way of a procedural right – except with the leave of the Court and upon such terms as the Court may provide. At the same time, that fetter placed on the procedural right of the parties, did not prevent the learned Court below from itself requiring additional Written Statement to be filed – if that appeared necessary to it to dispense true justice.”
Since three years had passed since the filing of the divorce petition, the Court observed that the Family Court ought have sought a written statement from the appellant regarding subsequent developments. It was further held that since there was lack of proven facts stated in the plaint and the first written statement, the Family Court could not have granted a divorce decree.
The Court observed that Section 13-B of the Hindu Marriage Act provides that the petition for divorce by mutual consent must be decided within 18 months of its presentation unless it is withdrawn by the parties in the meantime.
Reliance was placed on Sureshta Devi Vs. Om Prakash where the Supreme Court held that for granting a decree of divorce under Section 13-B of the Act, there must be mutual consent of the parties and the Court shall be satisfied as to the bonafides and consent of the parties. It was held that where there is lack of mutual consent, the Family Court has no jurisdiction for granting a decree of divorce. A decree of divorce at the instance of one party without the consent of the other party is not divorce by mutual consent.
The bench comprising of Justice Saumitra Dayal Singh and Justice Donadi Ramesh held
“In granting the divorce on the strength of mutual consent, the learned Court below may have dissolved the marriage between the parties only in the event of that consent continuing to exist on the date of the order being passed. Once the appellant claimed to have withdrawn her consent and that fact was on the record, it never became open to the learned court below to act on that (withdrawn) consent, belatedly. In any case, it never became open to the learned court below to force the appellant to abide by the original consent given by her that too almost three years later. To do that would be travesty of justice. Here, it may be noted, no money was paid to the appellant by way of permanent alimony etc., in lieu of her consent.”
The Court observed that while the appellant gave her consent on 01.04.2008 and 25.04.2008, 18 months had lapsed and thereafter she withdrew her consent in February, 2011 which was ignored by the Family Court while passing the divorce decree on 30.03.2011.
Holding that on the day of the decree, there was no consent on behalf of the appellant-wife, the Court set aside the divorce decree. The case was remitted back to the Family Court to proceed in accordance with law.
