DR.
RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY
LUCKNOW
FAMILY LAW
CASE STUDY: ANIL KR. JAIN Vs MAYA JAIN
(2009) 10 SCC 415
TABLE OF CONTENTS
S.No
1 Introduction.
2 Hindu Marriage Act
3 Summary of Facts
4 Issues Involved
5 Court’s Comment
6 Ratio of the Case
7 Personal Comment
8 Conclusion
INTRODUCTION
Marriages are considered as sacred alliance for life, it is not just a union between two persons
but between two families. Nonetheless, it is a relation between two people and since no
human is perfect it is highly probable that two people do not feel compatible with each other
so as to live together a whole life. Therefore, it can be seen that the cases of divorce are fast
rising even in countries like India where marriages are considered to be made in heaven. In
these circumstances, it is always better that couple take divorce by mutual consent so as to
avoid further disputes, time and money.
This paper will essentially deal with the idea of divorce on grounds of mutual consent.
Section 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act,
1954 deals with the provision of divorce on grounds of mutual consent. This project will
analyse these sections and also deal with the various amendments incorporated in these
section and also deal with a case regarding the same sections and how Supreme court’s order
was different than the one specified in the law in question.
HINDU MARRIAGE ACT
The Law in Question
The ground of divorce by mutual consent was inserted in the Hindu Marriage Act 1955 by an
amendment in 1976, by adding Section 13B. Section 13B of the Hindu Marriage Act, 1955
runs:
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, 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.1
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eighteen months after the said date, if the petition is not withdrawn in the meantime,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.
The requirements which have to be met to seek divorce under Hindu Marriage Act are as
follows:
The parties have been living separately for a period of at least one year
They have not been able to live together, and
They have mutually agreed that marriage should be resolved.2
1
The Hindu Marriage Act 1955 s 13(B)
2
ParasDiwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008)
525
The first requirement is that the parties should be living separately for a period of at least one
year before filing the divorce petition. It is necessary to understand what does the term
“living separately’ means.
Living separately
The Supreme Court of India in the case of Sureshta Devi v Om Prakash3 has ruled out “that
the expression living separately connotes not living like husband and wife. It has no
reference to the place of living. The parties may live under same roof by way of
circumstances, and yet they may not be living as husband and wife. What seems to be
important is that they have no desire to perform marital obligations and with that they have
been living separately for a period of one year immediately preceding the presentation of the
petition.” It has been ruled out by Supreme Court in various cases that the expression “have
been living separately’ does not necessarily means physical separation or living separately
and apart what is material is that no marital obligations are performed between the spouses
and they are not living together as husband and wife.
3
(1992) AIR SC 1904
SUMMARY OF FACTS
In the instant case, the appellant husband was married to the respondent wife on 22nd June,
1985, according to Hindu rites. On account of differences between them, they took a decision
to obtain a decree of mutual divorce, which resulted in the filing of a joint petition for
divorce underSection 13-B of the Hindu Marriage Act, 1955, (hereinafter referred to as `the
Act') on 4th September, 2004, in the District Court at Chhindwara. The learned Second
Additional District Judge, Chhindwara, fixed the date for consideration of the petition after
six months so as to give the parties time to reconsider their decision. On 7th March, 2005,
after the expiry of six months, the learned Second Additional District Judge, Chhindwara,
took up the matter in the presence of both the parties who were present in the Court. While
the appellant husband reiterated his earlier stand that a decree of mutual divorce should be
passed on account of the fact that it was not possible for the parties to live together, on behalf
of the respondent wife it was submitted that despite serious differences which had arisen
between them, she did not want the marriage ties to be dissolved. On account of withdrawal
of consent by the respondent wife, the learned Judge dismissed the joint petition
under Section 13-B of the Act.
Aggrieved by the order dated 17th March, 2005, passed by the learned Second Additional
District Judge, Chhindwara, the appellant filed an appeal in the High Court of Madhya
Pradesh at Jabalpur.While dismissing the appeal, the learned Single Judge took note of the
decision of this Court in similar circumstances in the case ofAshokHurra v.
RupaBipinZaveri4, wherein this Court granted a decree of mutual divorce by exercising its
extra-ordinary powers under Article 142 of the Constitution of India. It was indicated that the
High Court did not have such powers and Section 13-B required that the consent of the
spouses on the basis of which the petition under Section 13-B was presented, had to continue
till a decree of divorce was passed by mutual consent. On that basis, the learned Single Judge
of the High Court, while dismissing the appeal, observed that the appellant would be free to
file a petition of divorce in accordance with law, which would be decided on its own merits
by keeping in mind the special fact that the parties were living separately for about five years
and the respondent wife was adamant about living apart from her husband.
4
[1997 (4) SCC 226]
ISSUES INVOLVED
In the instant case since the situation prevailing is that the wife withdrew the consent to
divorce after she had got the property rights as was part of the deal made with her husband,
Mr. Anil Kr. Jain. The husband who insisted on getting a divorce from her did not take this
very well. While Maya Jain insisted on living separately from her husband while continuing
to enjoy the property rights given to her as well.
The Lower court or the High court couldn’t decide and dismissed the appeal made by the
Husband since the law very clearly stated the mutual consent of the parties should be there.
Also the 6 month cooling off period as granted by the law cannot be waived off by either the
lower or the high court. Only the Supreme Court has power to do so.
ISSUE:Whether or not the appellant can get divorce when one party backs out from
the mutual consent given?
COURT’S COMMENT
No purpose will be served by prolonging the agony of the parties
Doctrine of irretrievable breakdown of marriage is not available to High Courts
Court has to take total view of ground reality while dealing with adjustment of relationships
The Supreme Court has held that it is empowered to grant divorce by mutual consent under
Section 13 B of the Hindu Marriage Act even if the wife or the husband withdraws it during
the proceedings in the lower court and prior to the passing of the decree.
“Under the existing laws, the consent given by the parties at the time of filing of the joint
petition for divorce by mutual consent has to subsist till the second stage when the petition
comes up for orders and a decree for divorce is finally passed. It is only the Supreme Court,
in exercise of its extraordinary powers under Article 142 of the Constitution, that can pass
orders to do complete justice to the parties,” said a Bench of Justices AltamasKabir and
Cyriac Joseph.
The Bench made clear that this doctrine of irretrievable breakdown of marriage was not
available to the High Courts, which do not have powers similar to those exercised by the
Supreme Court under Article 142. “Neither the civil courts nor even the High Courts can
therefore pass orders before the periods prescribed under the relevant provisions of the Hindu
Marriage Act or on grounds not provided for in Sections 13 and 13 B of the Act.”
Writing the judgment, Justice Kabir cited Supreme Court judgments and said no purpose
would be served by prolonging the agony of the parties to a marriage which had broken
down irretrievably, and the curtain had to be rung down at some stage.
The Bench said the court had to take a total and broad view of the ground realities while
dealing with adjustment of human relationships.
In the present case, Anil Kumar Jain and Maya Jain filed a joint petition for divorce by
mutual consent in a trial court in Madhya Pradesh. As the wife withdrew her consent later,
the court dismissed the petition. A single judge of the Madhya Pradesh High Court at
Jabalpur dismissed the appeal.
Allowing the appeal by Anil Kumar Jain against this judgment, the Supreme Court, citing
precedents, said it would be a travesty of justice to continue with the marriage if there was no
possibility of the spouses coming together again. “The Supreme Court, under Article 142,
can grant relief to the parties without even waiting for the statutory period of six months
stipulated in Section 13 B of the Act.”
RATIO OF THE CASE
Fit case to exercise Article 142
In this case, the parties had been living separately for seven years. As part of an agreement,
the appellant transferred valuable property rights in favour of Maya, following which she
withdrew consent for divorce. This was a fit case where Article 142 could be exercised, the
Bench said and held that the marriage stood dissolved from the date of this judgment.
.
PERSONAL COMMENT
I believe the Supreme Court was correct in it’s judgment since the law at hand was unable to
bring justice to the aggrieved and made things worse for him since he had even lost all the
property rights in the prenup agreement. Also the six month cooling off period cannot be
suspended by High Courts since they do not have that power. Only the Supreme Court has
the power to dissolve a marriage due to it’s irretrievable breakdown. The stand of the
respondent wife that she wants to live separately from her husband but is not agreeable to a
mutual divorce is not acceptable, since living separately is one of the grounds for grant of a
mutual divorce and admittedly the parties are living separately for more than seven years.
The courts have been inclined more towards waiving off this period if the circumstance of
the case demands so and where there is no chance of reconciliation between the parties. Also,
Supreme Court by way of its extraordinary powers as provided under Article 142 of the
Indian Constitution can grant divorce without waiting for 6 months if it is satisfied that the
marriage is irretrievably broken down. However, this power is restricted only to Supreme
Court. There is still uncertainty whether High Courts and Family Courts have to mandatorily
wait for a period of 6 months. But as it is evident from many cases where there is no
possibility of reconciliation between the parties and the marriage has been broken down
irretrievably, the courts should follow the spirit of law more than the formal requirements of
the section.
CONCLUSION
Through this paper, we have analysed the Section 13-B of the Hindu Marriages Act. Divorce
by mutual consent provides an opportunity of amicable resolution of disputes between parties
and saves time and money. The requirements as provided under this section are that before
filing a joint petition for divorce parties must be living separately for a period of at least one
year. As we mentioned out earlier living separately does not necessarily connotes physical
separation, what is essential is that parties are not fulfilling marital obligations and not living
as husband and wife. The second requirement is that the parties have not been able to live
together. The fact that both the parties have filed a joint petition by mutual consent is
indicative of the face that parties have not been able to live together. Only thing that is
important is that the consent has been obtained freely and not by way of force, fraud or
undue influence as the whole purpose of mutual consent will be vitiated if consent is not free.
After parties have filed a joint petition for divorce fulfilling all the requisite conditions they
are given a time period of six months and not more than eighteen months after which they
have to file a second motion and courts after hearing the parties and scrutinizing the
averments in the petition pass a decree of divorce. The three points of contention are that
whether the waiting period of six months is mandatory or directory, the second is that can
parties unilaterally withdraw their consent and third that whether silence at the second stage
would amount to tantamount to withdrawal. There have been contrasting judgments on the
first two issues. Different high courts have adopted different yardsticks in the interpretation
of the Section 13-B. Some High Courts have held that the waiting period of six months is
mandatory as per the section whereas some High Courts have adopted the spirit of law more
than the technical words of the section and have ruled out that the period is directory if there
is no chance of reconciliation between the parties. However, Supreme Court using its
extraordinary powers under Article 142 of Constitution can pass the decree of divorce
without waiting for a period of 6 months. Also, Supreme Court in the given case has ruled
out that the petition of divorce can be withdrawn unilaterally. On the third issue the courts
have ruled out that silence or not appearing for hearings will not amount to withdrawal of
consent.
