Anil Kumar Jain v. Maya Jain
Supreme Court of India · 1 September 2009 · 2 judges
Consent to a mutual divorce petition under Section 13-B must continue until the decree, and only the Supreme Court under Article 142 can grant divorce despite withdrawal; it did so here.
Facts
The appellant husband and the respondent wife married on 22 June 1985. Because of differences, they filed a joint petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 in the District Court at Chhindwara on 4 September 2004. After six months, when the matter was taken up, the wife said that she did not want the marriage dissolved, and the petition was dismissed. The High Court of Madhya Pradesh dismissed the husband's appeal, holding that consent had to continue until the decree and that only the Supreme Court could act under Article 142. Before the High Court the wife said she wished to live separately but did not want a decree. As part of a settlement the husband had transferred valuable property to the wife, who withdrew consent after the transfer was registered.
Questions before the Court
- Can a decree of divorce be passed on a petition under Section 13-B of the Hindu Marriage Act, 1955 when one party withdraws consent before the decree?
- Can courts other than the Supreme Court grant divorce on the ground of irretrievable breakdown of marriage or without waiting for the statutory period?
- Should the Supreme Court exercise its power under Article 142 to grant a decree of mutual divorce in this case?
What the Court held
- Under the existing law, the consent given when the joint petition is filed must subsist until the second stage when the decree is passed. The law explained in Sureshta Devi still holds good, subject to variations for the Supreme Court in the light of Article 142.
- Irretrievable breakdown of marriage is not a ground for divorce under Section 13 or 13-B. Only the Supreme Court, under Article 142, can apply that doctrine, dispense with the six month period, or convert a Section 13 proceeding into one under Section 13-B.
- Civil courts and High Courts cannot pass orders before the prescribed periods or on grounds outside Sections 13 and 13-B, and cannot decree mutual divorce once a party has withdrawn consent.
- This was a fit case for Article 142: the parties had lived apart for over seven years, the wife had received property under the settlement before withdrawing consent, and her stand of living separately while refusing divorce was not acceptable. The appeal was allowed and a decree of divorce was passed.
Why it matters
The judgment states two propositions on divorce by mutual consent: consent must continue until the decree under Section 13-B, and irretrievable breakdown of marriage can be used to grant divorce only by the Supreme Court under Article 142, not by High Courts or civil courts. It reaffirms Sureshta Devi while recognising the Supreme Court's special power.
In the Court's words
Copied from the official judgment; each passage links to its page.
“although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court.”
“The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.”
“The stand of the respondent wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable, since living separately is one of the grounds for grant of a mutual divorce and admittedly the parties are living separately for more than seven years.”
Provisions interpreted
Case and bench
- Parties
- Anil Kumar Jain v. Maya Jain
- Case
- Civil Appeal No. 5952 of 2009 (arising out of Special Leave Petition (Civil) No. 14361 of 2007)
- Decided
- 1 September 2009
- Bench
- Altamas Kabir, J., Cyriac Joseph, J.
- Opinions
- Judgment of the Court delivered by Altamas Kabir, J.; Cyriac Joseph, J. also signed. No separate opinion.
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