Divorce by Mutual Consent – Maintainability of Appeal

The first part of Section 13-B of the Hindu Marriage Act contemplates for presentation of petition for dissolution of marriage by mutual consent by both the parties to the marriage, if they are living separately for a period of one year or more and have agreed to the dissolution of the marriage. The second part of Section 13-B of the Hindu Marriage Act has two sub – parts. The first sub-part provides for moving a motion by both the parties not earlier than six months from the date of presentation of the divorce petition and not later than eighteen months of the said date. In other words, it contemplates initiation of the second motion by both the parties after expiry of six months but before the expiry of eighteen months from the date of presenting petition for divorce.

The second sub-part contemplates that if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making inquiries that the averments in the petition are true, pass a decree for divorce.

In the case of Hitesh Bhatnagar v. Deepa Bhatnagar, 2011 (86) ALR 491, the Hon’ble Supreme Court has held that if the second motion is not made within period of eighteen months of the first motion petition, then court is not bound to pass a decree of divorce by mutual consent. The aforesaid time limit is not for withdrawal of the petition or consent, rather consent can be withdrawn at any t ime before a decree of divorce is passed.

In the case of Smt. Sureshta Devi v. Om Prakash, 1991 (17) ALR 263, it has been laid down that on the joint motion of the parties to grant divorce by mutual consent the Court is supposed to make an inquiry, hear and examine both the parties to ascertain that the consent of the parties has not been obtained by force, fraud or undue influence.

Section 23(1)(bb) of the Hindu Marriage Act also casts an obligation upon the courts in the matter of divorce by mutual consent to satisfy itself that the consent has not been obtained by force, fraud or undue influence. Thus , the court is obliged to make requisite inquiry in the matter before proceeding to pass a decree of divorce by mutual consent.

It means that for a decree of divorce by mutual consent joint petition is mandatory and that the second motion has to be made by the parties after six months but before expiry of eighteen months of the first motion petition and that the parties are free to withdraw the petition anytime before the passing of the decree. The decree has to be passed after making due inquiry as to the genuineness and bona fide of the parties to the petition.

Section 28 of the Hindu Marriage Act which permitted filing of appeal against the decrees and orders passed under the Act placed no rider on filing appeal even against a consent decree. It permitted appeal against all decrees made by the court in any proceedings under the Act, except those relating to award of costs. Thus, by necessary implication, even consent or compromise decree, if passed under the Hindu Marriage Act are open to appeal.

In Smt. Krishna Khetrapal v. Satish Lal, AIR 1987 P&H 191, it has been held that against the decree of divorce by mutual consent appeal is maintainable under Section 28 of the Hindu Marriage Act. Smt. Pooja v. Vijay Chaitanya, 2018 (129) ALR 711.

 

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