No divorce if either spouse withdraws consent: SC
New Delhi: Divorce cannot be granted to a
Hindu couple if either of the spouse withdraws the consent
before the judicial decree is passed, the Supreme Court has
A bench of justices D K Jain and H L Dattu said in a that
the most important requirement for grant of a divorce by
mutual consent is free consent of both the parties.
"In other words, unless there is a complete agreement
between the husband and the wife for the dissolution of the
marriage and unless the court is completely satisfied, it
cannot grant a decree for divorce by mutual consent," Justice
Dattu said writing the judgement.
The apex court passed the judgement while dismissing the
appeal filed by Hitesh Bhatnagar challenging the refusal
of the matrimonial court and the Punjab and Haryana High Court
to grant his plea for divorce by mutual consent after the
wife expressed the desire to continue the matrimonial
In the present case, Hitesh Bhatnagar and Deepa Bhatnagar
had in 2001 filed a petition under Section 13B of the Hindu
Marriage Act, 1955, before the district court in Gurgaon for
dissolution of the marriage by grant of a decree of divorce by
However, before passing of the decree of divorce, the
wife withdrew the consent on the ground she wanted to live
with her husband in the interest of their only daughter, after
which the trial court dismissed the petition.
Aggrieved, the husband appealed in the Punjab and Haryana
High Court which dimissed his appeal on November 8, 2006,
following which he moved the apex court.
The couple argued their case in person in the Supreme
Court sticking to their respective positions.
Interpreting Section 13B of the Act, the apex court said
that under the statute, the parties to the dispute can file a
second application for grant of the divorce decree.
"On the second motion of both the parties made not
earlier than six months after the date of the presentation of
the petition and not later than 18 months, if the petition is
not withdrawn, the court shall, on being satisfied, after
hearing the parties pass a decree of divorce.
"In other words, if the second motion is not made within
the period of 18 months, then the court is not bound to pass a
decree of divorce by mutual consent. Besides, from the
language of the Section, as well as the settled law, it is
clear that one of the parties may withdraw their consent at
any time before the passing of the decree," the bench said.
The apex court said that in the present case the second
motion was never made by both the parties, as is a mandatory
requirement of the law.
"No court can pass a decree of divorce in the absence of
that. The non-withdrawal of consent before the expiry of the
said eighteen months has no bearing.
"We are of the view that the 18-month period was
specified only to ensure quick disposal of cases of divorce by
mutual consent and not to specify the time period for
withdrawal of consent, as canvassed by the appellant
(husband)," the bench said.
The apex court pointed out that the wife wanted the
marriage to continue for the sake of their daughter whereas
the husband was determined to seek a divorce.
"Even now, she states that she is willing to live with
her husband putting away all the bitterness that has existed
between the parties. In the light of these facts and
circumstances, it would be a travesty of justice to dissolve
this marriage as having broken down.
"Though there is bitterness amongst the parties and they
have not even lived as husband and wife for the past about 11
years, we hope that they will give this union another chance,
if not for themselves, for the future of their daughter,"
Justice Dattu said.
The apex court concluded the judgement with the following
quote of English novelist George Eliot "what greater thing is
there for two human souls than to feel that they are joined
for life? to strengthen each other in all labour, to rest on
each other in all sorrow, to minister to each other in all
pain, to be one with each other in silent, unspeakable
memories at the moment of the last parting."
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