Home case law Anil Kumar Jain vs. Maya Jain (2009)

Anil Kumar Jain vs. Maya Jain (2009)

July 2, 2024

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This article is written by Prashant Prasad. It deals with the facts, issues, and arguments presented by the appellant, the various legal aspects involved, and the judgement that was delivered by the Apex Court in the case of Anil Kumar Jain v. Maya Jain (2009). The article delves into the legal provisions pertaining to the Hindu Marriage Act, 1955, and other relevant legal concepts, offering a comprehensive understanding of the Supreme Court’s power under Article 142 of the Constitution of India to grant divorce in cases of irretrievable breakdown of marriage.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

Marriage is an exclusive union between a man and a woman, and certain ceremonies are required to be performed for the recognition of marriage in society. Time and again, it has been reiterated by many courts in India that “marriages are made in heaven.” The ceremony of marriage in every religion is one of the special occasions that marks the most crucial and important event in one’s life. However, on the contrary, breaking this marriage by way of divorce can be emotionally and legally difficult for the couple.

In India, the law relating to divorce is governed by various personal laws, such as the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”), the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, and Muslim Law. However, one of the exceptions is the Special Marriage Act, 1954, which is applicable to every person based on their marital ties regardless of their religion.

Contemporary law is silent regarding the justification of living separately for any of the parties before the final decree of divorce, and the marriage remains intact until the final decree is passed by the court of competent jurisdiction. The present case of Anil Kumar Jain v. Maya Jain (2009) involves the matter of divorce by mutual consent amidst the different conditions and issues associated with it. The Supreme Court of India, invoking its exceptional authority as granted under Article 142 of the Indian Constitution, granted divorce to the parties and observed that divorce can be given to the parties in cases of “irretrievable breakdown of marriage”.

Background of the case

In India, the Hindu Marriage Act, 1955, regulates marriages among Hindus, Buddhists, Jains, and Sikhs. The Act lays down the detailed procedure for the solemnization of marriage along with the rights, duties, and obligations of the spouse, and if any inconvenience or conflict arises, then what grounds of divorce would be applicable in such scenarios are being ascertained based on this Act. Divorce by mutual consent is recognized as one of the grounds of divorce, and the divorce is allowed based on this ground under various provisions of different enactments like Section 13B of the Hindu Marriage Act, 1955, Section 28 of the Special Marriage Act, 1954, and Section 10A of the Indian Divorce Act, 1869, etc.

These provisions of different Acts discharge the parties from the obligation of marriage on the basis of their mutual consent. Divorce by mutual consent is one form of divorce in which the parties mutually agree to the divorce without blaming or accusing each other. This form of divorce is completely voluntary, and the parties presenting the petition should prove some of the basic requirements, such as that the individuals have been living apart for a year or more, they are unable to live together, and the parties have mutually consented to dissolve the marriage.

Details of the case

Case name: Anil Kumar Jain v. Maya Jain
Appellant: Anil Kumar Jain
Respondent: Maya Jain
Name of the court: The Supreme Court of India

Bench of Judges: Altamas Kabir and Cyriac Joseph, JJ.
Case category: Family law matter; mutual consent divorce matters
Date of judgement: 1 September, 2009
Equivalent Citations: AIR 2010 SUPREME COURT 229, 2009 AIR SCW 5899

Facts of Anil Kumar Jain vs. Maya Jain (2009)

In the present case, the husband and wife both got married in accordance with Hindu rituals on 22^nd June, 1985. Subsequently, disputes and differences arose among the couple, and they took the decision to file a mutual divorce. As a result, they filed the joint petition to obtain the decree of mutual divorce under Section 13B of the Act on 4th September, 2004, in the district court at Chhindwara. Based on the requirement of Section 13B of the Act, the learned Second Additional District Judge of Chhindwara scheduled the date of hearing after six months, allowing sufficient time to reconsider their decision regarding divorce and the further possibility of reconciliation. After the expiry of 6 months on 7^th March 2005, the learned Second Additional District Judge took the matter under consideration in the presence of both parties. The husband restated his earlier statement that the decree of mutual divorce should be passed because it is impossible for the parties to live together. However, the wife stated that, although there are some serious differences among them, she does not want their marital ties to terminate. The learned Second Additional District Judge of Chhindwara, on account of the withdrawal of consent from the wife, dismissed the joint petition that was filed under Section 13B of the Act.

Dissatisfied by the District Court’s decision, the husband (appellant) filed an appeal under Section 28 of the Act in the High Court of Madhya Pradesh at Jabalpur on 4^th April, 2005. Before the High Court of Madhya Pradesh also, the wife expressed her wish to live separately from the husband, but at the same time she did not want the court to issue the decree dissolving the marriage. As a result, the order was passed on 21^st March, 2007 by a single judge, dismissing the appeal made by the appellant. While dismissing the appeal, the High Court took reference to the case Ashok Hurra v. Rupa Bipin Zaveri (1997), in which the court accorded the decree of divorce by mutual consent on account of extraordinary power as given under Article 142 of the Indian Constitution. The court stated that the High Court lacks such power and, considering Section 13B, the court said that the consent of the spouse regarding the mutual divorce had to continue from the date on which the petition for divorce was presented until the date of the decree. However, the High Court, in dismissing the appeal, noted that the appellant would be free to file the divorce petition in accordance with the law and that the case would be decided on its merit, considering the specific circumstances in mind that the parties had been living apart for approximately five years. Against the order of the High Court, an appeal was filed by the husband in the Hon’ble Supreme Court of India, and the case was decided by the Hon’ble Court, considering different situations and technicalities present in the case.

Issues raised

Does the consent given by both parties at the time of presenting the petition for mutual divorce under Section 13B need to persist till the decree is finally passed?
Is the irretrievable breakdown of marriage considered as a ground under Section 13 or Section 13B of the Act?
Can the Supreme Court of India, using its power under Article 142, convert the proceeding from Section 13 of the Act to Section 13B?

Contention of appellant

Mr. Rohit Arya, the learned senior advocate appearing on behalf of the husband, i.e., the appellant, contended that

Prior to filing a joint petition for mutual divorce, the parties had entered into an agreement that was aptly agreed upon by the appellant, and on the basis of the agreement, valuable property rights were transferred in favour of the wife, which she had been enjoying and continues to enjoy.
It was further submitted that, from the attitude of the wife, it can be clearly observed that the wife has no intent to live with the husband, and hence, it can be said that the marriage has irretrievably broken down.
Under these special circumstances, the Court does have the authority under Article 142 of the Indian Constitution to grant a decree of divorce under Section 13B of the Act, even if either party has withdrawn consent before passing the decree of divorce.

Legal aspects involved in this case

Irretrievable breakdown of marriage theory

This theory of divorce comes under the ambit of Section 13B of the Act. The theory affirms that if the marriage has broken down in such a way that there is no possibility to repair it again, then under that situation, the marriage should be dissolved without blaming any party or looking into their fault. Thus, if the marriage cannot be restored in the same way as before, despite the best efforts of the parties, then, in that scenario, it is used as a no-fault ground, which means neither party is required to demonstrate that the other party is responsible for the dissolution of the marriage.

Following are the factors for determining irretrievable breakdown of marriage:

The time interval for which the parties have cohabited after the solemnization of marriage.
Last time when the parties cohabited.
The allegation and nature of the allegation which were made either by the parties or by their family members.
The order passed (if any) in the previous legal proceeding regarding any matter, and what was the impact of that order.
Efforts that were made by the parties to settle their dispute either by the court’s intervention or through mediation.
Period of separation among the parties.
Along with these factors, other factors also need to be taken into account before the decree of divorce, such as the economic standing of the parties, their educational backgrounds, children, and the alimony claimed.

Judicial pronouncements regarding irretrievable breakdown of marriage theory

Naveen Kohli v. Neelu Kohli (2006)

The Supreme Court of India in this case upheld the decision made by the Family Court regarding the matter that the appellant subjected the respondent to physical, financial, and psychological abuse, and hence, their marriage was irreparably broken down, which was considered as a valid ground for granting divorce in this case.

Further, the Supreme Court of India advised the legislative body of the government to inculcate an irretrievable breakdown of marriage as one of the grounds for granting a divorce. This case emphasised the paramount importance of including irretrievable breakdown of marriage as one of the grounds of divorce, especially to protect the interests of younger children, who are the major sufferers as they are embedded in their parent’s irretrievable marriage. This case has also stated that many developed nations have already recognized the irretrievable breakdown of marriage as a separate ground for granting a divorce, and the law pertaining to divorce has evolved over time to provide a faster remedy to the parties of divorce.

Shipla Sailesh v. Varun Sreenivasan (2023)

This ruling of the Supreme Court of India has a vital impact on the divorce laws in India. In this case, the court ruled that it has the power to dissolve the marriage if it has irretrievably broken down, and even if one of the parties is unwilling, the decree of divorce can also be passed. It was further added that, under certain circumstances, the Court can even waive off the mandatory waiting period of six months for divorce under the Act.

This ruling allowed the parties to surpass the waiting period, and the parties can directly approach the Supreme Court of India for a decree of divorce if their marriage has been irretrievably broken down. Thus offering a quicker solution to the parties who are unable to live together and have mutually agreed to divorce. However, it is important to note that this ruling does not imply that the parties should directly move to the Supreme Court for a speedy divorce. The granting of divorce on the ground of irretrievable breakdown of marriage is discretionary, and hence, great care and caution must be taken before moving ahead with it.

Section 13 of the Hindu Marriage Act, 1955

The opening line of Section 13 of the Act mentions that any marriage that is solemnised either before or after the commencement of the Act may be terminated by a decree of divorce. The decree of divorce can be passed if the petition is presented by any of the parties on the basis of the various grounds that are specified under this Section. The different grounds of divorce that are specified under this Section are as follows:

Adultery [Section 13(1)(i)]: Adultery is defined as voluntarily having sexual intercourse outside of marriage. The petitioner bears the burden of proof to prove that the respondent had sexual intercourse with any other person and that the marriage was in existence during that time.
Cruelty [Section 13(1)(ia)]: Cruelty as a ground of divorce can be defined as any human behaviour that causes danger or apprehension of danger to life, limb, or health to the petitioner. The cruelty can be either mental or physical. Physical cruelty involves acts such as causing bodily injury, beating, etc. Whereas some instances of mental cruelty can be the demand for dowry, the accusation of false adultery, etc.
Desertion [Section 13(1)(ib)]: Desertion basically means abandoning the partner continuously for a period of 2 years or more. For desertion to be a valid ground of divorce, certain essentials must be present, such as animus deserendi (an intention to desert), desertion without reasonable cause, desertion without the other partner’s consent, and a period of at least 2 years. If these essentials are fulfilled, then desertion can become a ground for divorce.
Conversion [Section 13(1)(ii)]: If any one of the spouses ceases to be a Hindu without the consent of the other partner by converting to any other religion, then that can serve as a ground for divorce.
Insanity [Section 13(1)(iii)]: If any one of the partners has been incurably of unsound mind and is perpetually suffering from a mental disorder to such an extent that the petitioner cannot reasonably be expected to live with the respondent for the rest of their lives, the petitioner may seek a divorce based on this ground.
Venereal disease [Section 13(1)(v)]: If any of the spouses is suffering from a sexually transmitted disease that is not curable and is transmittable, such as AIDS, then such disease forms the basis of divorce.
Renunciation [Section 13(1)(vi)]: If any one of the spouses enters into the religious order, renouncing the worldly affairs that amount to renunciation. However, the renunciation of the world and entering into the holy religious order must be absolute and not partial. Therefore, in the case of renunciation by a person, it would be tantamount to the civil death of the person and, hence, becomes grounds for divorce.
Presumption of death [Section 13(1)(vii)]: If a person has not been known to be alive by the person who would naturally have heard about it for a period of seven years or more, then, in that condition, it would lead to the legal presumption of the death of that person.

Special grounds of divorce are available to wives only under Section 13 of the Act:

Pre-Act polygamous marriage [Section 13(2)(i)]: If the husband was already married before the Act came into force, and after the commencement of the Act, if the husband again gets married, then both the wives have the right to seek divorce.
Rape, Bestiality, or Sodomy [Section 13(2)(ii)]: If, after the solemnization of marriage, the husband is guilty of rape, bestiality, or sodomy, then the wife can file a petition for divorce.
Decree or order of maintenance [Section 13(2)(iii)]: If the order of maintenance has been issued against the husband under Section 18 of the Hindu Adoption and Maintenance Act, 1956, or Section 125 of the Code of Criminal Procedure, then a divorce may be filed by the wife if they have been living separately and have not cohabited for at least one year since the date of issuance of the order.
Repudiation of marriage [Section 13(2)(iv)]: If the marriage is solemnised between the husband and wife before the wife attains the age of fifteen years, then in that situation, the wife can opt to repudiate the marriage after reaching the age of 15 years but before the completion of the age of 18 years.

Section 13B of the Hindu Marriage Act, 1955

This Section was inserted in the Act by an Amendment in 1976, and hence, one more ground for divorce became part of the Act, i.e., divorce by mutual consent. Section 13B of the Act states that:

Subject to the provisions of the Act, a petition for the dissolution of marriage may be presented at the District Court with the mutual consent of the parties. The petition can be presented regardless of the fact that the marriage was performed either prior to the commencement of the Act or after the commencement of the Act. The petition can be presented on the basis of the fact that the spouse has not been living together for an interval of one year or more, it is not possible for them to reside together, and they have voluntarily agreed to dissolve their marriage.
After six months of the presentation of the petition, but before eighteen months, if the petition is not withdrawn by the parties, the court, upon being assured of the validity of the declaration presented in the petition, after hearing both parties and making such inquiry as the court deems fit, may grant a decree of divorce declaring the marriage dissolved with effect from the date of passing of the decree.

Grounds of divorce by mutual consent

Divorce can be granted by the court based on mutual consent on three grounds. The judiciary, through various rulings, has clarified the actual meaning of those grounds and how they can serve as a ground for filing a mutual consent divorce.

Living separately

It is necessary that the spouse must be living apart for a period of at least one year. The Apex Court in the case of Sureshta Devi v. Om Prakash (1991) has held that the word “living separately” as a ground for divorce by mutual consent means not living like a husband and wife. It was further added by the court that it has no connection with the place of living; the parties may live under the same roof, but it is possible that they might not live as husband or wife. The court ruled that what is material is that the husband and wife have no intention to perform their marital obligations, and with that, they had been living apart for a period of at least one year before the petition for divorce was presented.

Spouses not been able to live together

The parties to the divorce have been unable to reside together, which is another ground for establishing the divorce by mutual consent. The Supreme Court of India in the case of Sureshta Devi vs. Om Prakash (1991) has held that the expression “have not been able to live together” means that the marriage is broken down irretrievably with no prospect of reunion among the spouses. It was further added by the Court that the parties need not prove that it is not possible for them to live together; the mere presentation of a petition with their joint consent is an indication of the fact that the parties were not able to live together.

Mutual agreement among the parties

The parties must mutually agree to dissolve their marriage. There must not be any coercion, undue influence, or any other supervening factor that compels the parties to present the petition for divorce. The parties shall voluntarily agree, and their consent should be completely free.

Is the waiting period of six months obligatory or optional?

Section 13B of the Act specifically designates that if the petition is presented by the parties for divorce by their mutual consent, then there should be a waiting period of not less than six months to reconsider their decision. However, the question emerges in many cases: can the divorce be granted even before the period of 6 months if there are compelling circumstances? On this question, there has been conflicting judgement from various courts as to whether the courts are required to wait for the period of six months as mentioned under Sub-section (2) of Section 13B.

In the case of Dineshkumar Shukla v. Smt. Neeta (2005), it was held by the Madhya Pradesh High Court that the waiting period of 6 months is directory in nature and can even be brought down from 6 months. However, the mandatory requirements that are mentioned under Section 13B (1) must be fulfilled in case the waiting period is brought down from 6 months to less than that. However, in the case of Hitesh Narender Doshi v. Jesal Hitesh Joshi (2000), it was ruled by the court that the provision pertaining to the waiting period of 6 months had been inserted with the purpose of giving the parties a reasonable amount of time to reconsider their decision and the possibility of reconciliation, so as to promote welfare among the parties to the dispute and to uphold the importance of marriage.

Furthermore, in the case of Grandhi Venkata Chitti Abbai (1998), it was held by the Andhra High Court that if Section 13-B(2) is read as a mandatory provision, then the very purpose of liberalising the decree of divorce by way of mutual consent will be frustrated. In the case of Ashok Hurra vs. Rupa Ashok Hurrarupa Bipin Zaveri (1997), it was held by the Supreme Court of India that the court, in exercise of extraordinary power as granted under Article 142 of the Indian Constitution, can grant the divorce without even waiting for the statutory period of 6 months if it is satisfied that the marriage is irretrievably broken down.

Therefore, it can be inferred from the above ruling of different courts that the courts are inclined more towards waving off the period of 6 months if the situation is such that there is no possibility of reunion among the parties. The Supreme Court of India, in the scenario of irretrievable breakdown of marriage, can grant divorce without even waiting for the period of 6 months by virtue of extraordinary power as enshrined under Article 142 of the Indian Constitution.

Is a unilateral withdrawal of consent a viable option?

There might be a situation when the parties apply for mutual consent and then, in between the case, one of the parties withdraws the consent without giving any intimation or information to the other party. This issue has been a matter of question in many cases, including the present case of Anil Kumar Jain v. Maya Jain. There have been different opinions from the various courts on this particular issue. The main question associated with it is, since the parties apply for the mutual divorce jointly, how can it be withdrawn unilaterally? And if it is withdrawn, then what is the justification behind such a withdrawal?

In the case of Jayashree Ramesh Londhe v. Ramesh Bhikaji (1984), it was held by the Bombay High Court that once a joint petition is filed by both parties with their mutual consent, no party is allowed to withdraw it without the mutual consent of both.

In the case of Sureshta Devi v. Om Prakash (1991), it was held by the court that if one of the parties recalls the consent, then the court cannot pass the decree of mutual divorce. The court further added that mutual consent is the ‘sine qua non’ for passing a decree of divorce under Section 13B. Therefore, mutual consent must subsist until the decree of divorce is passed.

However, in the present case of Anil Kumar Jain v. Maya Jain, the Supreme Court of India has taken a contrary view and held that while exercising extraordinary power under Article 142, a decree of divorce can be granted to do complete justice to the parties.

Article 142 of the Indian Constitution

The Constitution of India gives power to the Supreme Court to pass any decree in order to do complete justice. For the past few years, the ambit of Article 142 has expanded, and it has been invoked on several occasions to do “complete justice”.

Article 142(1) of the Indian Constitution states that the Supreme Court of India, while exercising its jurisdiction, may pass such an order or decree as is necessary for doing complete justice regarding any matter that is pending before the court. The decree or order that is being passed by the Court while exercising the power under this Section shall be applicable across the territory of India in any manner as prescribed by the Parliament.

Article 142(2) further states that, subject to the provisions of any law made by the Parliament, the Supreme Court of India shall have the power to make any order throughout the territory of India for securing the attendance of persons, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

This Article confers a very wide power on the Supreme Court of India to do complete justice in any matter pending before it. However, this wide ambit of power and how it can be limited were discussed in the case of Zahira Habibullah Sheikh v. State of Gujarat (2004). It was discussed in this case that the wide power granted to the Supreme Court under Article 142 can “be limited to the short compass of the actual dispute before the court and not to what might reasonably be connected with or related to such a matter”.

The Supreme Court of India discussed the effect of the different legislative enactments on limiting the power contained under Article 142 in the case of Delhi Judicial Service Association v. State of Gujarat (1991). The Supreme Court of India has held in this case that the constitutional power of the Supreme Court as guaranteed under Article 142 cannot be undermined by any statutory provision.

Judgement in Anil Kumar Jain vs. Maya Jain (2009)

It was considered by the Court that in the present case, the wife has made a clear intention of not living with the husband, and apart from that, she has also not agreed to a mutual divorce. The court observed that under ordinary circumstances, the petitioner in the present case would be left with the only remedy of filing a separate petition for divorce on the basis of different grounds available under Section 13 before the Family Court. But it was added by the court that in the present case, there are certain acknowledged facts that invoke Section 13B. Section 13B allows the divorce on the basis of the fact that the couple have been living separately for one year or even more than one year, and in the present case, the parties have been living separately for more than 7 years. The Supreme Court noted that before the filing of the application for mutual divorce by the parties, and by virtue of the agreement among them, the husband transferred some of the valuable property rights in the wife’s favour, and after the property’s registration, it can be well inferred that the consent was withdrawn by the wife. The wife continues to enjoy the property while living separately from the husband.

After considering the different circumstances and issues present in the case and the submission made. The court allowed the appeal and impugned the order and judgement that was passed by the High Court, and the petition for granting divorce by mutual consent under Section 13B was accepted by the court. The court held that there would be a divorce decree based on the joint petition that was submitted before the Second Additional District Judge of Chhindwara under Section 13B of the Act, and the marriage, which was solemnised on 22^nd June, 1955, shall stand dissolved from the date of judgement.

Issue-wise Judgement

Issue 1: Does the consent given by both parties at the time of presenting the petition for mutual divorce under Section 13B need to persist till the decree is finally passed?

The Supreme Court, regarding this issue, held that it is empowered to accord the decree of divorce by mutual consent based on Section 13B of the Act, even if either the husband or the wife withdraws the consent before passing the decree. The court was of the opinion that the consent given by the spouse during the time when the joint petition for mutual divorce was submitted should continue until the second stage, when the petition comes for order and a decree of divorce is finally passed. However, only the Supreme Court, using its authority under Article 142, can issue an order to ensure complete justice for the parties involved.

Issue 2: Is irretrievable breakdown of marriage considered as a ground of divorce under Section 13 or Section 13B of the Act?

The Supreme Court of India, on this issue, was of the opinion that the irretrievable breakdown of marriage is not a ground that is mentioned under Section 13 or Section 13B. However, the said doctrine can be applied to either of the two provisions when the case is before the Supreme Court. The reason for this is the exercise of extraordinary power as conferred under Article 142 of the Indian Constitution. Moreover, the Supreme Court, while exercising its extraordinary power as conferred under Article 142 of the Indian Constitution, can grant relief to the parties even without waiting for the period of 6 months as specified under Section 13B of the Act.

The court further stated that the decision based on the doctrine of irretrievable breakdown of marriage can’t be given by the High Court, as the High Court does not have similar power that is exercised by the Supreme Court as conferred by Article 142 of the Indian Constitution. Therefore, neither the civil courts nor the high courts have the power to make the decision prior to the period stipulated under the relevant provision of the Act or on the basis of grounds not provided under Section 13 or Section 13B of the Act.

Issue 3: Can the Supreme Court of India, using its power under Article 142, convert the proceeding from Section 13 of the Act to Section 13B?

Regarding this issue, the Court held that the Supreme Court, while exercising its power as conferred by Article 142 of the Indian Constitution, can transform a proceeding under Section 13 of the Act into one under Section 13B and issue a decree for mutual divorce. The Supreme Court can pass the decree of mutual divorce if such a situation exists even without waiting for the statutory six-month period, a power that no other courts can exercise.

Cases referred to pronounce the judgement of Anil Kumar Jain v. Maya Jain

Smt. Sureshta Devi v. Om Prakash (1991)

In this case, it was ruled that consent, which is given by the spouse while filing the petition for divorce by mutual consent, must exist until the decree of divorce on that petition. If any of the parties withdraws their consent when the petition for mutual divorce is under consideration by the court or the consent is withdrawn before the passing of the decree, then under those circumstances, the petition under Section 13B of the Act would be dismissed.

Chandrakala Menon (Mrs.) and Anr. v. Vipin Menon (Capt.) and Anr. (1993)

In this case, the petition for mutual divorce was filed under Section 13B, and afterwards, the consent was withdrawn within a week of submitting the joint petition. The Supreme Court of India, exercising its power as conferred by Article 142 of the Constitution, accorded the decree of divorce under Section 13B in order to secure the ends of justice. However, certain conditions were imposed before passing the decree, with the clarification that the decree would take effect only upon the accomplishment of the conditions that are associated with the passing of the decree.

Ashok Hurra v. Rupa Bipin Zaveri (1997)

In this case, the Supreme Court of India has accorded the decree of divorce based on the mutual consent of the parties exercising its extraordinary power as conferred by Article 142 of the Indian Constitution. The court in this case granted the divorce to the parties, and despite the wife’s withdrawal of consent, the court was of the opinion that the marriage had irretrievably broken down. So, it was observed that consent can be withdrawn unilaterally only in exceptional cases if reasonable grounds exist.

Sandhya M. Khandelwal v. Manoj K. Khandelwal (1998)

This case has come before the Supreme Court of India through a transfer petition seeking to move the current matrimonial suit. When the case was pending before the court, the parties settled their dispute, and submissions were made regarding mutual divorce. The court was of the opinion that the terms of settlement are beneficial to both parties and also in the best interest of their minor son. The petition was dealing with Section 13 of the Act, and the court, keeping in mind the pact among the parties, granted the decree of divorce by treating the pending application as one of the petitions under Section 13B of the Act.

Kiran v. Sharad Putt (2000)

In this case, the parties were living separately for several years, and there was pending litigation regarding the matter under Section 13 of the Act for more than 11 years. At a later stage of the proceeding, the parties filed a joint petition for the amendment in the divorce petition. The Supreme Court of India, while exercising its extraordinary power under Article 142 of the Indian Constitution and treating the said petition of divorce as one of the petitions under Section 13B, granted a decree of mutual divorce at the stage of SLP.

Anjana Kishore v. Puneet Kishore (2002)

In the present case, while hearing the transfer petition, the court exercised its authority as conferred under Article 142 of the Indian Constitution. It directed that the parties, who have already filed a joint petition for mutual divorce under Section 13B of the Act in the Family Court at Bandra, Mumbai, along with a copy of the settlement between them, need not wait for the period of 6 months as stipulated under Sub-section (2) of Section 13 of the Act. The Family Court can issue the final order on that petition at any time it deems appropriate upon receiving a copy of the settlement.

Swati Verma (Smt.) v. Rajan Verma and Ors. (2004)

The present case was related to the transfer petition, and the doctrine of irretrievable break-down of marriage was invoked. Afterwards, the parties arrived at the compromised settlement and thereby filed an application under Section 13B of the Act read with Article 142 of the Indian Constitution. The court, while exercising its power under Article 142 of the Indian Constitution, allowed the application for mutual divorce in order to give rest to the litigation associated with the present case.

Conclusion

Mutual consent divorce among the parties is one of the processes of harmonious settlement of the dispute in which the time as well as the resources of the parties are saved. In the entire case, it can be inferred that the court has considered some of the most vital aspects of the matrimonial dispute. Interpreting Section 13B and the various precedents, it was ruled by the court that the mandatory period of 6 months varies according to the case, and with regards to the power of the Court, the Supreme Court, while exercising the power under Article 142 of the Indian Constitution, can issue the decree of divorce even without waiting for the statutory period of 6 months, while this power is absent in other High Courts. This case marks one of the most important precedents regarding the unilateral withdrawal of consent after the filing of the mutual divorce petition.

Mutual consent divorce offers parties the resolution of their marital obligations, but the parties should reconsider their decision and the likelihood of reconciliation among them before directly approaching the court of law to file the divorce petition. The parties should realise their rights and responsibilities associated with that marital tie, and they can opt for mediation or any counselling session before directly approaching the court. While divorce is an option, the parties should consider working on their marriage, which might lead to a stronger and more fulfilling bond.

Frequently Asked Questions (FAQs)

What reliefs may be available against the dismissal of the joint petition for divorce by the lower court on account of the unilateral withdrawal of consent?

After the dismissal of a joint petition on account of the unilateral withdrawal of consent regarding the mutual consent divorce, an appeal can be filed under Section 28 of the Hindu Marriage Act, 1955.

What is the significance of the decision given by the court in the case of Ashok Hurra v. Rupa Bipin Zaveri in the present case?

The case of Ashok Hurra v. Rupa Bipin Zaveri holds immense significance in the present case, as the court has granted the divorce by mutual consent to the parties using its authority as enshrined under Article 142 of the Indian Constitution.

What are the situations in divorce cases in which the Supreme Court of India can invoke its extraordinary jurisdiction under Article 142 of the Indian Constitution?

The court can exercise its power under Article 142 of the Indian Constitution to grant relief to the parties whose marriage has been irretrievably broken down and justice cannot be served with the conventional prolonging legal process.

What was the rationale behind the Court’s decision to grant the divorce to the parties despite the wife’s withdrawal of consent?

The Court, based on the facts and circumstances of the case, concluded that the parties have been living separately for a long time, and it can be seen that there is no intention among the parties to live together in the future. The overall circumstances indicated the irretrievable breakdown of the marriage, and hence the court granted divorce to the parties.