Allahabad High Court Sets Aside Divorce Decree, Holds Consent Must Continue to Subsist During the Entire Proceedings
Last Updated on September 17, 2024 by Amit Patra
In a landmark judgment aimed at upholding the sanctity of marital consent, the Allahabad High Court has set aside a divorce decree, underscoring that a Family Court cannot decree divorce on the basis of earlier consent if it is withdrawn subsequently during the proceedings. This judgment has brought to the fore the necessity of mutual consent at all times in cases of divorce and questioned the finality of initial consent in protracted legal battles.
The appellants were married in 2006. The husband filed a divorce petition on the grounds of infertility of the wife. The wife, who had earlier given her consent, subsequently withdrew her consent and even produced two children born during the pendency of the proceedings. However, the principal issue on which the Family Court granted divorce was the consent of the wife for divorce given in her earlier statement.
The High Court judgment pronounced by Justices Saumitra Dayal Singh and Donadi Ramesh expressed annoyance over the way in which the Family Court had set aside the subsequent statements and evidence of the wife. The court explained that in all the cases filed under Section 13 of the Hindu Marriage Act and not under Section 13-B relating to mutual consent divorce, the consent of the parties should continue.
Key takeaways from the judgment:
1. The Family Court has erred in ignoring the statements, oral and joint, made by the wife during conciliation, expressing a desire to live together.
2. In this view of the matter, on the lapse of as long a period as three years since the presentation of the petition, there should have been an updated written statement.
3. Consent for divorce by mutual consent, as enacted in Section 13-B, has to continue till the decree is passed; and such consent given at the initial stage can be withdrawn at any point in time before the passing of the decree itself.
4. The Family Court has no jurisdiction to pass a decree of divorce without mutual consent.
This judgment thus affirms the view of the Supreme Court in the case of Sureshta Devi vs. Om Prakash, where it had held that there has to be continued mutual consent for divorce. Hence, the judgment of the High Court, remitting the matter to the Family Court with a direction for reconsideration, strengthens the discretionary rule that a decree of divorce cannot be passed based on consent which has become stale or has been subsequently withdrawn.
This judgment acts as an essential reminder to the Family Courts to remain alert that marital disputes are essentially dynamic, and the latest stand taken by both parties before the passing of a divorce decree assumes great relevance. It also portrays a trend in a more holistic approach to family law matters where the court has to balance between procedural rule and pursuit of justice in the ever-changing landscape of marital relationships.
