REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPEALATE JURISDICTION

CIVIL APPEAL NO. 6288 OF 2008

Hitesh Bhatnagar         ………….. Appellant

versus

Deepa Bhatnagar …………..Respondent

J U D G M E N T

H.L. Dattu, J.

1) Marriages are made in heaven, or so it is said. But we are more often  

than  not  made  to  wonder  what  happens  to  them by  the  time  they  

descend down to earth. Though there is legal machinery in place to  

deal with such cases, these are perhaps the toughest for the courts to  

deal with.  Such is the case presently before us.  

2) The appellant-husband and the respondent-wife got married according  

to the Hindu Marriage Act, 1955 [hereinafter referred to as ‘the Act’]  

in 1994, and are blessed with a daughter a year thereafter. Some time  

in the year 2000, due to differences in their temperaments, they began  

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to  live  separately  from each  other  and  have  been living  thus  ever  

since.  Subsequently, in 2001, the parties filed a petition under Section  

13B of the Act before the District Court, Gurgaon, for dissolution of  

the  marriage  by  grant  of  a  decree  of  divorce  by  mutual  consent.  

However, before the stage of second motion and passing of the decree  

of divorce, the respondent withdrew her consent, and in view of this,  

the petition came to be dismissed by the Ld.  Addl.  District  Judge,  

Gurgaon, though the appellant insisted for passing of the decree.  The  

appellant,  being aggrieved, has filed appeal No. F.A.O. No. 193 of  

2003, before the High Court of Punjab and Haryana.  The Learned  

Judge, by his well considered order, dismissed the appeal vide order  

dt. 08.11.2006.  Being aggrieved by the same, the appellant is before  

us in this appeal.  

3) We have heard the learned counsel for the parties and since the parties  

wanted to ventilate their grievances, we have heard them also.   

4) The issues that arise for our consideration and decision are as under:

(a) Whether the consent once given in a petition for divorce  by mutual consent can be subsequently withdrawn by one  of the parties after the expiry of 18 months from the date  of the filing of the petition in accordance with Section  13B (1) of the Act.

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(b) Whether  the  Court  can  grant  a  decree  of  divorce  by  mutual consent when the consent has been withdrawn by  one of the parties, and if so, under what circumstances.

5) In  order  to  answer  the  issues  that  we  have  framed  for  our  

consideration  and  decision,  Section  13B of  the  Act  requires  to  be  

noticed :-

13B.  Divorce  by  mutual  consent.  –  (1)  Subject  to  the  provisions of this Act a petition for dissolution of marriage  by a decree of divorce may be presented to the district court  by  both  the  parties  to  a  marriage  together,  whether  such  marriage was solemnized before or after the commencement  of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.)  on  the  ground that  they  have been living separately  for  a  period of one year or more, that they have not been able to  live  together  and  that  they  have  mutually  agreed  that  the  marriage should be dissolved.

(2) On the motion of both the parties made not earlier than  six months after the date of the presentation of the petition  referred  to  in  sub-section  (1)  and  not  later  than  eighteen  months after the said date, if the petition is not withdrawn in  the  meantime,  the  court  shall,  on  being  satisfied,  after  hearing the parties and after making such inquiry as it thinks  fit,  that  a  marriage  has  been  solemnized  and  that  the  averments in the petition are true, pass a decree of divorce  declaring the marriage to be dissolved with effect from the  date of the decree.

6) Admittedly,  the  parties  had  filed  a  petition  for  divorce  by  mutual  

consent  expressing  their  desire  to  dissolve  their  marriage  due  to  

temperamental incompatibility on 17.08.2001.  However, before the  

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stage of second motion, the respondent withdrew her consent by filing  

an application dated 22.03.2003.  The withdrawal of consent was after  

a period of  eighteen months of filing the petition.  The respondent,  

appearing in-person, submits that she was taken by surprise when she  

was  asked  by  the  appellant  for  divorce,  and  had  given  the  initial  

consent  under  mental  stress  and  duress.  She  states  that  she  never  

wanted divorce and is even now willing to live with the appellant as  

his wife.  

7) The appellant, appearing in-person, submits that at the time of filing  

of the petition, a settlement was reached between the parties, wherein  

it was agreed that he would pay her `3.5 lakhs, of which he states he  

has already paid `1.5 lakhs in three installments. He further states in  

his appeal, as well as before us, that he is willing to take care of the  

respondent’s  and  their  daughter’s  future  interest,  by  making  a  

substantial financial payment in order to amicably settle the matter.  

However, despite repeated efforts for a settlement, the respondent is  

not agreeable to a decree of divorce.  She says that she wants to live  

with the appellant as his wife, especially for the future of their only  

child, Anamika.   

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8) The  question  whether  consent  once  given  can  be  withdrawn  in  a  

proceeding for divorce by mutual consent is no more res integra. This  

Court,  in the case of Smt.  Sureshta Devi v.  Om Prakash,  (1991) 2  

SCC 25, has concluded this issue and the view expressed in the said  

decision as of now holds the field.    

9) In the case of Sureshta Devi (supra.), this Court took the view:

“9. The ‘living separately’ for a period of one year should be  immediately preceding the presentation of the petition. It is   necessary  that  immediately  preceding  the  presentation  of   petition,  the parties  must have been living separately.  The  expression  ‘living  separately’,  connotes  to  our  mind  not   living like husband and wife. It has no reference to the place   of living. The parties may live under the same roof by force  of circumstances, and yet they may not be living as husband   and wife. The parties may be living in different houses and  yet they could live as husband and wife. What seems to be   necessary  is  that  they  have  no  desire  to  perform  marital   obligations  and  with  that  mental  attitude  they  have  been  living  separately  for  a  period  of  one  year  immediately   preceding  the  presentation  of  the  petition.  The  second  requirement that they ‘have not been able to live together’   seems to indicate the concept of broken down marriage and  it would not be possible to reconcile themselves. The third  requirement  is  that  they  have  mutually  agreed  that  the   marriage should be dissolved.

10. Under sub-section (2) the parties are required to make a   joint  motion not  earlier  than six  months  after  the  date  of   presentation  of  the  petition  and not  later  than 18 months   after the said date. This motion enables the court to proceed   with the case in order to satisfy itself about the genuineness   of the averments in the petition and also to find out whether   the  consent  was  not  obtained  by  force,  fraud  or  undue   

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influence. The court may make such inquiry as it thinks fit   including the hearing or examination of the parties for the   purpose  of  satisfying  itself  whether  the  averments  in  the  petition are true. If the court is satisfied that the consent of   parties was not obtained by force, fraud or undue influence   and they have mutually agreed that the marriage should be  dissolved, it must pass a decree of divorce.”

On  the  question  of  whether  one  of  the  parties  may  withdraw  the  

consent at any time before the actual decree of divorce is passed, this Court  

held:

“13. From the analysis of the section, it will be apparent that   the  filing  of  the  petition  with  mutual  consent  does  not   authorise the court to make a decree for divorce. There is a   period of waiting from 6 to 18 months. This interregnum was   obviously  intended  to  give  time  and  opportunity  to  the   parties  to  reflect  on  their  move  and  seek  advice  from  relations and friends. In this transitional period one of the  parties may have a second thought and change the mind not   to proceed with the petition. The spouse may not be a party   to the joint motion under sub-section (2). There is nothing in   the section which prevents such course. The section does not   provide that if there is a change of mind it should not be by   one party alone, but by both. The High Courts of Bombay  and Delhi  have  proceeded on the  ground that  the  crucial   time  for  giving  mutual  consent  for  divorce  is  the  time  of   filing the petition and not the time when they subsequently   move  for  divorce  decree.  This  approach  appears  to  be   untenable. At the time of the petition by mutual consent, the   parties are not unaware that their petition does not by itself   snap marital ties. They know that they have to take a further   step to snap marital ties. Sub-section (2) of Section 13-B is   clear on this point. It provides that “on the motion of both   the  parties.  ...  if  the  petition  is  not  withdrawn  in  the  meantime, the court shall ...  pass a decree of divorce ...”.   What is significant in this provision is that there should also   

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be mutual consent when they move the court with a request   to  pass  a  decree  of  divorce.  Secondly,  the  court  shall  be   satisfied about the bona fides and the consent of the parties.   If there is no mutual consent at the time of the enquiry, the   court gets no jurisdiction to make a decree for divorce. If the   view is otherwise, the court could make an enquiry and pass   a divorce decree even at the instance of one of the parties   and against the consent of the other. Such a decree cannot   be regarded as decree by mutual consent.”

10) In the case of Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226,  

this Court in passing reference, observed:

“16. We are of opinion that in the light of the fact-situation  present  in  this  case,  the  conduct  of  the  parties,  the   admissions made by the parties in the joint petition filed in   Court,  and  the  offer  made  by  appellant’s  counsel  for   settlement,  which  appears  to  be  bona  fide,  and  the  conclusion reached by us on an overall view of the matter, it   may not be necessary to deal with the rival pleas urged by   the parties regarding the scope of Section 13-B of the Act   and the correctness or otherwise of the earlier decision of   this Court in Sureshta Devi case or the various High Court   decisions  brought  to  our  notice,  in  detail.  However,  with   great  respect  to  the  learned  Judges  who  rendered  the   decision in Sureshta Devi case, certain observations therein  seem to be very wide and may require reconsideration in an  appropriate case. In the said case, the facts were:

The  appellant  (wife)  before  this  Court  married  the  respondent  therein  on  21-11-1968.  They  did  not  stay   together from 9-12-1984 onwards. On 9-1-1985, the husband  and wife together moved a petition under Section 13-B of the   Act  for  divorce  by  mutual  consent.  The  Court  recorded   statements  of  the  parties.  On 15-1-1985,  the wife  filed  an   application in the Court stating that her statement dated 9-1- 1985 was obtained under pressure and threat.  She prayed  for  withdrawal  of  her  consent  for  the  petition  filed  under  Section 13-B and also prayed for dismissal of the petition.   

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The District Judge dismissed the petition filed under Section  13-B of the Act. In appeal, the High Court observed that the   spouse  who  has  given  consent  to  a  petition  for  divorce   cannot  unilaterally  withdraw  the  consent  and  such  withdrawal, however, would not take away the jurisdiction of   the Court to dissolve the marriage by mutual consent, if the   consent was otherwise free. It was found that the appellant   (wife)  gave  her  consent  to  the  petition  without  any  force,   fraud  or  undue  influence  and  so  she  was  bound  by  that   consent. The issue that came up for consideration before this   Court  was,  whether  a  party  to  a  petition  for  divorce  by   mutual  consent  under  Section  13-B  of  the  Act,  can  unilaterally withdraw the consent and whether the consent   once given is irrevocable. It was undisputed that the consent   was withdrawn within a week from the date of filing of the   joint petition under Section 13-B. It was within the time-limit   prescribed under Section 13-B(2) of the Act. On the above  premises, the crucial question was whether the consent given   could be unilaterally withdrawn. The question as to whether   a party to a joint application filed under Section 13-B of the   Act can withdraw the consent beyond the time-limit provided  under  Section  13-B(2)  of  the  Act  did  not  arise  for   consideration. It was not in issue at all. Even so, the Court   considered the larger question as to whether it is open to one  of the parties at any time till a decree of divorce is passed to   withdraw the consent given to the petition. In considering the  larger  issue,  conflicting  views  of  the  High  Courts  were   adverted  to  and  finally  the  Court  held  that  the  mutual   consent should continue till the divorce decree is passed. In  the  light  of  the clear import  of  the language employed in   Section 13-B(2) of the Act, it appears that in a joint petition  duly filed under Section 13-B(1) of the Act, motion of both  parties should be made six months after the date of filing of   the petition and  not later than 18 months, if the petition is   not withdrawn in the meantime. In other words, the period of   interregnum of 6 to 18 months was intended to give time and  opportunity  to  the  parties  to  have  a  second  thought  and  change the mind. If it is not so done within the outer limit of   18 months, the petition duly filed under Section 13-B(1) and   still pending shall be adjudicated by the Court as provided in   

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Section 13-B(2) of the Act. It appears to us, the observations   of  this  Court  to  the  effect  that  mutual  consent  should  continue till the divorce decree is passed, even if the petition   is not withdrawn by one of the parties within the period of 18  months,  appears  to  be  too  wide  and  does  not  logically   accord  with  Section  13-B(2)  of  the  Act.  However,  it  is   unnecessary to decide this vexed issue in this case, since we   have reached the conclusion on the fact-situation herein. The   decision in Sureshta Devi case may require reconsideration   in an appropriate case. We leave it there.”

11) These observations of this Court in the case of Ashok Hurra (supra)   

cannot  be considered to be ratio  decidendi  for all  purposes,  and is  

limited to the facts of that case. In other words, the ratio laid down by  

this Court in the case of Sureshta Devi (supra) still holds the field.  

12) In the case of  Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC  

338, a bench of three learned judges of this Court, while approving the  

ratio laid down in the case of  Sureshta Devi (supra), has taken the  

view :-

“40. In the Constitution Bench decision of this Court in Rupa  Ashok Hurra this Court did not express any view contrary to   the  views  of  this  Court  in  Sureshta Devi.  We endorse the  views taken by this Court in Sureshta Devi as we find that on   a proper construction of the provision in Sections 13-B(1)  and 13-B(2), there is no scope of doubting the views taken in   Sureshta Devi. In fact the decision which was rendered by  the two learned Judges of this Court in Ashok Hurra has to   be treated to be one rendered in the facts of that case and it   is also clear by the observations of the learned Judges in that   case.

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41. None  of  the  counsel  for  the  parties  argued  for  reconsideration of the ratio in Sureshta Devi.

42. We are of the view that it is only on the continued mutual   consent of the parties that a decree for divorce under Section   13-B of the said Act can be passed by the court. If petition   for divorce is not formally withdrawn and is kept pending  then on the date when the court grants the decree, the court   has a statutory obligation to hear the parties  to ascertain  their consent. From the absence of one of the parties for two  to three days, the court cannot presume his/her consent as  has  been done  by  the  learned Family  Court  Judge in  the   instant  case  and  especially  in  its  fact  situation,  discussed  above.

43. In our view it is only the mutual consent of the parties   which gives the court the jurisdiction to pass a decree for   divorce under Section 13-B. So in cases under Section 13-B,   mutual  consent  of  the  parties  is  a  jurisdictional  fact.  The   court while passing its decree under Section 13-B would be   slow and  circumspect  before  it  can  infer  the  existence  of   such jurisdictional fact. The court has to be satisfied about  the existence of mutual consent between the parties on some  tangible  materials  which  demonstrably  disclose  such  consent.”

13) The appellant contends that the Additional District Judge, Gurgaon,  

was bound to grant divorce if the consent was not withdrawn within a  

period of  18 months in view of the language employed in Section  

13B(2) of the Act.  We find no merit in the submission made by the  

appellant in the light of the law laid down by this Court in Sureshta  

Devi’s case (supra).  

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14) The language employed in Section 13B(2) of the Act is clear.  The  

Court is bound to pass a decree of divorce declaring the marriage of  

the parties before it to be dissolved with effect from the date of the  

decree, if the following conditions are met:

a. A second motion of both the parties is made not before 6 months  

from the  date  of  filing  of  the  petition  as  required  under  sub-

section (1) and not later than 18 months;

b. After hearing the parties and making such inquiry as it thinks fit,  

the Court is satisfied that the averments in the petition are true;  

and

c. The petition is not withdrawn by either party at any time before  

passing the decree;

15) 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  most  

important requirement for a grant of a divorce by mutual consent is  

free consent  of both the parties.   In other  words,  unless there is  a  

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complete agreement between husband and wife for the dissolution of  

the marriage and unless the Court is completely satisfied, it  cannot  

grant a decree for divorce by mutual consent.  Otherwise, in our view,  

the expression ‘divorce by mutual consent’ would be otiose.     

16) In the present fact scenario, the second motion was never made by  

both the parties as is a mandatory requirement of the law, and as has  

been  already  stated,  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  

eighteen 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.  

17) In the light of the settled position of law, we do not find any infirmity  

with the orders passed by the Ld. Single Judge.   

18) As  a  last  resort,  the  appellant  submits  that  the  marriage  had  

irretrievably broken down and prays that the Court should dissolve the  

marriage  by  exercising  its  jurisdiction  under  Article  142  of  the  

Constitution  of  India.   In  support  of  his  request,  he  invites  our  

attention to the observation made by this Court in the case of  Anil   

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Kumar Jain v. Maya Jain, (2009) 10 SCC 415, wherein though the  

consent was withdrawn by the wife, this Court found the marriage to  

have been irretrievably broken down and granted a decree of divorce  

by  invoking  its  power  under  Article  142.   We are  not  inclined  to  

entertain this submission of the appellant since the facts in that case  

are not akin to those that are before us.  In that case, the wife was  

agreeable  to  receive  payments  and  property  in  terms of  settlement  

from her husband, but was neither agreeable for divorce, nor to live  

with  the  husband  as  his  wife.  It  was  under  these  extraordinary  

circumstances that this Court was compelled to dissolve the marriage  

as having irretrievably broken down.  Hence, this submission of the  

appellant fails.     

19) In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10  

SCC 425, a Bench of three learned Judges (of which one of us was a  

party), took the view:

“25. Article 142 being in the nature of a residuary power   based  on  equitable  principles,  the  Courts  have  thought  it   advisable to leave the powers under the article undefined.   The  power  under  Article  142  of  the  Constitution  is  a   constitutional power and hence, not restricted by statutory  enactments. Though the Supreme Court would not pass any   order  under  Article  142  of  the  Constitution  which  would   amount  to  supplanting  substantive  law  applicable  or  

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ignoring  express  statutory  provisions  dealing  with  the  subject, at the same time these constitutional powers cannot   in  any  way,  be  controlled  by  any  statutory  provisions.   However, it is to be made clear that this power cannot be  used to supplant the law applicable to the case. This means   that  acting  under  Article  142,  the  Supreme  Court  cannot   pass an order or grant relief which is totally inconsistent or  goes  against  the  substantive  or  statutory  enactments   pertaining to the case. The power is to be used sparingly in  cases which cannot be effectively and appropriately tackled  by  the  existing  provisions  of  law  or  when  the  existing  provisions  of  law  cannot  bring  about  complete  justice   between the parties.”

20) Following the above observation, this Court in the case of  Manish  

Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the  

marriage on the ground of irretrievable breakdown of marriage, held:

“19. Therefore, the law in this regard can be summarised to   the effect that in exercise of the power under Article 142 of   the Constitution, this Court generally does not pass an order   in contravention of or ignoring the statutory provisions nor   is the power exercised merely on sympathy.”

21) In other  words,  the power under Article  142 of the Constitution is  

plenipotentiary.  However, it is an extraordinary jurisdiction vested by  

the  Constitution  with  implicit  trust  and  faith  and,  therefore,  

extraordinary care and caution has to be observed while exercising  

this jurisdiction.    

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22) This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC  

337 held that irretrievable breakdown of a marriage cannot be the sole  

ground for the dissolution of a marriage, a view that has withstood the  

test of time.  

23) In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC  

73, this Court took the view:

“17. The marriage between the parties cannot be dissolved   only on the averments made by one of the parties that as the   marriage between them has broken down, no useful purpose  would  be  served  to  keep  it  alive.  The  legislature,  in  its   wisdom, despite observation of this Court has not thought it   proper to provide for  dissolution of  the marriage on such  averments. There may be cases where, on facts, it is found  that  as  the  marriage  has  become  dead  on  account  of   contributory acts of commission and omission of the parties,   no useful purpose would be served by keeping such marriage   alive. The sanctity of marriage cannot be left at the whims of   one of the annoying spouses.......”

24) This  Court  uses  its  extraordinary  power  to  dissolve  a  marriage  as  

having irretrievably broken down only when it is impossible to save  

the marriage and all efforts made in that regard would, to the mind of  

the Court,  be counterproductive  [See  Samar Ghosh v.  Jaya Ghosh,  

(2007) 4 SCC 511].  

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25) It is settled law that this Court grants a decree of divorce only in those  

situations in which the Court is convinced beyond any doubt that there  

is  absolutely  no chance of  the marriage surviving and it  is  broken  

beyond repair. Even if the chances are infinitesimal for the marriage  

to survive, it is not for this Court to use its power under Article 142 to  

dissolve the marriage as having broken down irretrievably.  We may  

make it clear that we have not finally expressed any opinion on this  

issue.      

26) In the present case, time and again, the respondent has stated that she  

wants  this  marriage  to  continue,  especially  in  order  to  secure  the  

future of their minor daughter, though her husband wants it to end.  

She has stated that from the beginning, she never wanted the marriage  

to be dissolved.  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  light  of  these  facts  and  circumstances,  it  would  be  

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.   We  conclude  by  quoting  the  great  poet  

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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.”   

27) Before parting with the case, we place on record our appreciation for  

the efforts made by Shri. Harshvir Pratap Sharma, learned counsel, to  

bring about an amicable settlement between the parties.   

28) In the result, the appeal fails.  Accordingly, it is dismissed.  No order  

as to costs.    

……………………………J.            [ D. K. JAIN]

……………………………J.              [ H. L. DATTU]

New Delhi, April 18, 2011.

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