Case Brief: Smt. Sureshta Devi vs Om Prakash

Name of the Case	Sureshta Devi Vs. Om Prakash
Citation	MANU/SC/0718/1991
Date of the Judgement	07.02.1991
Petitioner	Sureshtha Devi
Respondent	Om Prakash
Bench/ Judges	K. Jagannatha Shetty and S.C. Agrawal, JJ.
Statutes Involved	Special Marriage Act 1954, Hindu Marriage Act 1955
Important Articles/ Sections	Hindu Marriage Act 1955- section 13 B

FACTS OF THE CASE

“Shrimati Sureshtha Devi and Om Prakash got married in 1968. They lived together for 6 to 7 months. there after the wife did not stay with the husband except for some time. That is for about a month in 1984-85.  After the end of this one-month period, both of them came to Hamirpur. They move the petition under section 13 B of the 1955 Act for divorce by mutual consent in the district court.

 The wife filed an application in the court stating that the petition for divorce was filed by her under pressure and threat from her husband, and she was not allowed to consult her relations before filing the said petition. She desired to be removed from being a party to the petition and prayed for its dismissal. The case was ultimately dismissed by the district court. Appeal was filed before the High Court, which reversed the order of the district court and granted a decree for dissolution of marriage by mutual consent. The High Court was of the view that consent once given cannot be revoked unilaterally if the consent was found to be free. Therefore, she was held bound by the consent”.

PROVISIONS INVOLVED

Special Marriage Act 1954

Section 23(1)(bb): In judicial separation, the courts must ensure that the consent is not taken by fraud or force

Section 28: divorce by mutual consent

Hindu Marriage Act 1955

Section 13 B: Divorce by mutual consent

Section 23(1): General conditions for granting relief

LEGAL ISSUES AROSE

“following legal issues were identified by the court:

1.  Whether a party to a petition for divorce by mutual consent under section 13B of the Hindu Marriage Act 1955 can unilaterally withdraw the consent, or is the consent irrevocable?
2. Whether the filing of a joint petition and recording of a statement is sufficient for granting at the roads, or whether mutual consent must continue until the final decree?”

ARGUMENTS FROM THE APPELLANT’S SIDE

“The learned counsel from the appellant’s side made the following contentions;

1. They claimed that the consent of Sureshtha Devi was not free and was taken under pressure.
2. They asserted that she is not allowed to consult her family or relatives.
3.  They contended that she had withdrawn the consent before the final decree was passed”.

ARGUMENTS FROM THE RESPONDENT’S SIDE

“The learned counsel from the respondent’s side made the following contentions:

1. Once the parties have given their consent and statement, it becomes irrevocable.
2. If the original consent was free and voluntary, then the court should pass the final decree”.

COURT’S STANCE AND JUDGMENT

“The bench observed that under section 13B  of the Hindu Marriage Act 1955, the three requirements are to be met. The first is that it is necessary that, immediately preceding the presentation of the petition, the parties must have been living separately for a period of 1 year. The expression ‘ living separately’ Means that they should not live together as husband and wife.  They will live together under the same roof by force of circumstances, and yet they may not be living as husband and wife. The court also observed that the parties may be living in different houses, and yet they could be living as husband and wife. What is necessary is that they have no desire to perform marital obligations.

The second requirement, that ‘ they have not been able to live together,’ seems to indicate the concept of a broken-down marriage that is beyond reconciliation.

The third requirement is that they have mutually agreed that marriage should be dissolved.

 Subsection 2 requires the party to make a joint motion not earlier than 6 months after the date of presentation of the petition. After this motion, the court proceeds with the case. The court satisfies itself about the genuineness of the petition. The court is also at Liberty to find out whether consent was not obtained by force, fraud, or undue influence. If the court is satisfied that the consent was not obtained by such a vitiating factor and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.

As per subsection 2, the court is required to hear the parties. If one of them at that stage withdraws their consent, the court cannot pass a decree of divorce by mutual consent. If the court is held to have the power to make a decision solely on the basis of the initial petition, the whole idea of mutuality and consent is compromised. Mutual consent is a sine qua non for passing a decree”.

CONCLUSION

“This judgement overruled various cases such as Shrimati Jayashree Ramesh Londhe v.  Ramesh Bhikaji Londhe, Meena Dutta v. Anirudh Dutta, and Chander Kanta v. Hans Kumar and Anr., and set an important precedent that consent is sine qua non for claiming divorce under section 13 B of the Hindu Marriage Act.  This judgement ensured that divorce by mutual consent should not be forced or manipulated”.