No divorce if either spouse withdraws consent:SC

A bench of justices D K Jain and H L Dattu said that the most important requirement for grant of a divorce by mutual consent is free consent of both the parties.

"In other words, unless there is a complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent," Justice Dattu said writing the judgement.

The apex court passed the judgement while dismissing the appeal filed by Hitesh Bhatnagar challenging the refusal of the matrimonial court and the Punjab and Haryana High Court to grant his plea for divorce by mutual consent after the wife expressed the desire to continue the matrimonial relationship.

In the present case, Hitesh Bhatnagar and Deepa Bhatnagar had in 2001 filed a petition under Section 13B of the Hindu Marriage Act, 1955, before the district court in Gurgaon for dissolution of the marriage by grant of a decree of divorce by mutual consent.

However, before passing of the decree of divorce, the wife withdrew the consent on the ground she wanted to live with her husband in the interest of their only daughter, after which the trial court dismissed the petition.

Aggrieved, the husband appealed in the Punjab and Haryana High Court which dimissed his appeal on November 8, 2006, following which he moved the apex court.

The couple argued their case in person in the Supreme Court sticking to their respective positions. Interpreting Section 13B of the Act, the apex court said that under the statute, the parties to the dispute can file a second application for grant of the divorce decree.

"On the second motion of both the parties made not earlier than six months after the date of the presentation of the petition and not later than 18 months, if the petition is not withdrawn, the court shall, on being satisfied, after hearing the parties pass a decree of divorce.

"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 bench said.

The apex court said that in the present case the second motion was never made by both the parties, as is a mandatory requirement of the law. "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 18-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 (husband)," the bench said.

The apex court pointed out that the wife wanted the marriage to continue for the sake of their daughter whereas the husband was determined to seek a divorce.

"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 the light of these facts and circumstances, it would be a 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," Justice Dattu said.

The apex court concluded the judgement with the following quote of English novelist 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."