The Supreme Court examined whether consent given at the time of filing a joint petition continues to bind the parties until decree, or whether it can be withdrawn at any stage before the court passes the final order.

The appellant argued that once the statutory period of 18 months had expired without formal withdrawal, the court had no option but to grant divorce. The respondent contended that mutual consent must subsist till the date of decree and that she had validly withdrawn her consent before the second motion.

The judgment clarified the nature of mutual consent as a jurisdictional requirement and reaffirmed earlier precedents on the subject. It also considered whether Article 142 of the Constitution could be invoked to dissolve the marriage on the ground of irretrievable breakdown.

“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 The appellant contends that the Additional District Judge, Gurgaon, was bound to grant divorce if the consent was not withdrawn within a period of 18 months in view of the language employed in Section 13B(2) of the Act.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).”

“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c. The petition is not withdrawn by either party at any time before passing the decree;”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.”

“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.”

“18. 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.”

“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.”

Decision

The Supreme Court dismissed the appeal.

The Court held that:

• Mutual consent must continue till the decree of divorce.

• Either party may withdraw consent at any time before the decree.

• The 18-month period does not bar withdrawal of consent.

• Article 142 cannot be used to override statutory requirements in ordinary circumstances.

Citation :(2011) 5 SCC 234

Other Sources :

Index of Divorce Judgements is here. 

Key Contributor :

Mrs. Suprajaa Rajan B.Com., LL.B., LL.M.

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