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Divorce By Mutual Consent

Sureshta Devi v. Om Prakash AIR 1992 SC 1904

SURESHTA DEVI V. OM PRAKASH

Sureshta Devi v. Om Prakash AIR 1992 SC 1904

ISSUE:

  • Whether the petition for divorce can be withdrawn?

RULE:

  • Section 13B(2) of the Hindu Marriage Act lays down that the filing of a divorce petition with mutual consent does not authorise the court to make a decree for divorce without a 6-18 month waiting period.
  • The section does not provide any indication that a change of mind must be by both parties and not by one alone.

FACTS:

  • Sureshta Devi and Om Prakash were married in 1968. They lived together for six to seven months and then they lived separately.
  • On 9th January 1985 they filed for divorce under the Hindu Marriage Act’s Section 13B.
  • On 15th January, Sureshta Devi filed an application stating that her statement on the 9th was obtained under pressure and she was not permitted to see or meet her relatives prior to making her statement. She prayed for its dismissal.
  • The matter was brought to a District Judge who dismissed the divorce petition, however, the High Court reversed this stating that a spouse cannot unilaterally withdraw her consent from a divorce. Furthermore, the High Court found no force, fraud or undue influence.

HELD:

  • The Supreme Court held that Section 13B, mutual consent must continue until a court passed the decree of divorce. Consent was considered a sine qua non for passing a decree of divorce under 13B.
  • The court further observed that the High Courts had proceeded on the grounds that the crucial time for giving consent was the time of filing of the petition, this was considered untenable and the real-time of giving consent was considered when the parties move for a decree of divorce.
  • The court ruled that it is open to a spouse to withdraw the consent given to a petition any time before a Court passes a decree for divorce.
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Divorce By Mutual Consent

Amardeep Singh v Harveen Kaur (CA No. 11158 of 2017, SC. 12 September 2017)

AMARDEEP SINGH V. HARVEEN KAUR

Amardeep Singh v Harveen Kaur (CA No. 11158 of 2017, SC. 12 September 2017)

ISSUE:

  • Whether the minimum six-month period prescribed by Section 13B(2) of the Hindu Marriage Act is mandatory or can be relaxed in exceptional situations?

RULE:

  • The object of the provision is to enable parties to dissolve a marriage by consent if it has broken down and to enable them to rehabilitate.
  • In the case where there are no chances of reunion and chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option.

FACTS:

  • Singh and Kaur were married in 1994. They had two children. Disputed between them gave rise to civil and criminal proceedings.
  • In 2017, they reached a settlement to resolve all the disputes and seek a divorce by mutual consent.
  • Harveen was to be given 2.75 crores as permanent alimony. Amardeep handed over two checks of 50 lakhs each as part payment of the permanent alimony.
  • The custody of their children was decided to be with Amardeep.
  • They moved the Supreme Court to waive the six month waiting period under Section 13B(2) of the Hindu Marriage Act on the grounds that they had been living apart for the past eight years and there was no chance of reconciliation.

HELD:

  • The Supreme Court ruled that the provision was directory and not mandatory and hence, it could be waived.
  • The court further ruled that the period could be waived only in cases where the parties were living separately for longer than the statutory period and all efforts at reconciliation have failed.
  • It was further held that it would be open to the Court to exercise its discretion in the facts of each case.