FAMILY LAW INTERNAL EXAMINATION - II

Amithab Sankar,
1477,
Semester 2

QUESTION:
Rajeev and Reshma, a Hindu couple were living separately for nearly 5 years owing to
incompatibility of their temperaments. On Rajeev’s suggestion, Reshma agreed to seek
divorce by mutual consent and they filed a petition for divorce under section 13-B of the
Hindu Marriage Act, 1955. However after 6 months, Reshma refused to go to court
again with Rajeev, saying that she had changed her mind as she did not wish to lead the
life of divorcee. Rajeev prays to the court that divorce be granted to him on the basis of
first petition.
Analyse the situation with relevant legal provisions and case laws in this regard.

Ans: In the given problem, the husband and wife, Rajeev and Reshma were living separately
for a period of five years and therefore they agreed for divorce by mutual consent. Divorce by
mutual consent is filed under section 13-B of the Hindu Marriage Act. The following are the
conditions that are required to be satisfied in order to file a petition under section 13-B of the
Hindu Marriage Act:
 The spouses were living separately for a period of one year or more
 They have not been able to live together
 They have mutually agreed that their marriage should be dissolved
In the given problem, the spouses were living separately for more than 5 years and they were
not able to live together due to incompatibility of their temperaments. They had also mutually
agreed to dissolve their marriage, thereby satisfying all the conditions required for the
dissolution of marriage under section 13-B of the Hindu Marriage Act. So, the petition filed
by the spouses is a valid one. Section 13-B also states that both the parties have to pass a
motion not earlier than six months and not later than eighteen months after the date of
presentation of the petition. The period of 6 to 18 months provided in section 13B is a period
of interregnum which is intended to give time and opportunity to the parties to reflect on their
move. In Suman v. Surendra Kumar, the court stated that during transitional period the
parties or either of them may have second thoughts and is given opportunity to reflect on their
moves. During that period, if the petition is not withdrawn by the parties, the court shall, on
being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnised and that the averments in the petition are true, pass a decree of
divorce declaring the marriage to be dissolved with effect from the date of the decree.
The most important aspect for divorce by mutual consent is the passing of a motion
by both the parties after the interregnum period. In the case of Shikha Bhatia vs. Gaurav
Bhatia & Ors. and Avneesh Sood vs. Tithi Sood, the Court had opined that a spouse, who
gives an undertaking to the court to abide by the consent given in the First motion for
dissolution of marriage under Section 13B (1) of the Act and for moving a Second motion
petition, cannot be permitted to resile from such an undertaking on the basis of an agreement
arrived at between the parties and any attempt to resile therefrom would amount to a breach
of the undertaking accepted by the court and therefore, attract contempt proceedings. In this
case, one of the parties wanted to go back on divorce after the passing of motion by them,
which was considered by the court to be contempt. In the present scenario, no such motion
was passed by the parties and therefore, the wife, Reshma has the right to withdraw petition
and need not go forward with it.
However, in the present case, not dissolving the matrimonial relationship would only
amount to putting the husband, Rajeev under intense situation of mental cruelty. In another
case i.e. Rajiv Chhikara vs. Sandhya Mathu, the Division Bench of Delhi High Court opined
that resiling from a settlement amounts to mental cruelty. The Court in the case observed that
the parties had been living separately since 2009 and their relationship was beyond
repair. Hence in such circumstance one spouse insists of retaining the matrimonial bond
then the same would be like putting the spouse under intense situation of mental
cruelty. In the given problem, the spouses have been living separately for five years and their
relationship was beyond repair.
The decision in the case of Sureshta Devi case was endorsed by a three Judge Bench
of the Supreme Court in the Smruti Pahariya case, wherein the Apex Court stated that it
is only on the continued mutual consent of the parties that a decree for divorce under
Section 13-B of the said Act can be passed by the court. If petition for divorce is not
formally withdrawn and is kept pending then on the date when the court grants the decree, the
court has a statutory obligation to hear the parties to ascertain their consent. The court has to
be satisfied about the existence of mutual consent between the parties on some tangible
materials which demonstrably disclose such consent. In the present case, there is no such
consent and therefore, the husband, Rajeev cannot seek divorce on the basis of first petition.
Since Reshma does not consent to divorce, the divorce cannot be on the basis of mutual
consent. If Rajeev further wants to go with the divorce, he has to file another petition for
divorce and not under section 13-B of the Hindu Marriage Act since there is no mutual
consent.
In the case of Smruti Pahariya vs. Sanjay Pahariya, the Apex Court held that
consent cannot be presumed by the absence in Court of one spouse at the end of 6 months
cooling off period in mutual consent divorce petition. It was also opined that courts cannot
presume consent of a party merely because both the parties are signatories to the First motion
under Section 13B of the Act. Before passing a decree of divorce, the court remains under an
obligation to satisfy itself as to whether the consent given by the parties is a valid one.
Therefore, even if Reshma fails to appear before the court, Rajeev cannot proceed with the
case. Thus, Rajeev will not be granted divorce on the basis of first petition.