Continued mutual consent must for grant of mutual consent divorce

The Delhi High Court in the case under Section 13B (2) of Hindu Marriage Act, 1955 has ordered that it is necessary that the mutual consent must remain till the decree is passed for granting divorce.

In the case for divorce between Tina Gupta v. Vishal Gupta, MAT APP.93/2007 under Section 13B (2) of Hindu Marriage Act, 1955, Appellant-wife and Respondent-husband had filed a case for divorce under mutual consent. However, during the course of the trial, the wife withdrew her consent for divorce and the husband expired because of which the Trial Court decreed that the divorce be granted and an amount of Rs.8 lakhs be given to the Appellant-wife as alimony.

But the wife appealed to the Delhi High Court against the order in the grounds that the Trial Court did not take into consideration that she had not consented mutually for the divorce and that such consent was withdrawn.

The Delhi High Court, while dealing with the case observed that, if the parties are filing for divorce through mutual consent, the fact of mutual consent should be present till the decree is passed as also held in Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234 and held that the decree shouldn’t be passed by the Trial Court. The Court also took reference from the case Smt. Yallawan v. Smt. Shatavva, AIR 1997 SC 35 and confirmed that death of the husband during the pendency of the matrimonial appeal would have no bearing upon the wife’s right to sue, as it would continue in favour of the husband’s legal representatives.

It also referred to Order 9 Rule 13 of CPC while passing the Order which states that, where there has been an appeal against a decree passed ex parte under this Rule, and the appeal has been disposed of on any ground other than the ground that the Appellant has withdrawn the appeal, no application shall lie under this Rule for setting aside that ex parte decree.

Hence, the High Court on November 6, 2018 set aside the order by Additional District Judge, Delhi in HMA No. 801/06 also asked the Appellant-wife to return the 8 Lakh alimony to the representative of the deceased.

Takeaways:

  1. The consent can be withdrawn by either party in a case of divorce by mutual consent any time before the court grants divorce i.e. up to the date of the decree. If done so, the case cannot proceed under Section 13B (2) of Hindu Marriage Act, 1955.
     
  2. The death of one of the parties to a divorce case for alimony cannot be considered as a reason to end the case as it will continue through their legal representative. This is as per Section 2(11) of CPC and upheld in Sri Krishna Singh v. Mathura Ahir & Ors., AIR 1980 SC 707.
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