Family Courts Cannot Convert Separate Divorce Petitions Into Mutual Consent Divorce Petition U/S. 13B Hindu Marriage Act: Delhi High Court
The High Court clarified that separate divorce petitions filed by spouses under Section 13 of the Hindu Marriage Act cannot be equated with a joint petition under Section 13B, observing that mutual consent is a substantive statutory requirement and must continue until the decree is granted.
Justice Anil Kshetarpal, Justice Harish Vaidyanathan Shankar, Delhi High Court
The Delhi High Court set aside a decree of divorce granted by a Family Court, which had converted two contested petitions filed separately by husband and wife into a petition for divorce by mutual consent. The Court held that such an approach was legally impermissible and amounted to the Family Court exercising powers it did not possess.
The High Court was hearing an appeal against the judgment of the Family Court, which had dissolved the marriage of the parties under Section 13B of the Hindu Marriage Act, 1955. The Family Court had reasoned that since both parties had filed separate divorce petitions, one alleging cruelty and the other alleging adultery and cruelty, their mutual desire to end the marriage stood established, and therefore, the matter could be treated as a mutual consent divorce.
A Division Bench comprising Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar observed, “While the Hon’ble Supreme Court may, in exercise of Article 142, mould reliefs and even convert contested proceedings into a mutual consent divorce in order to do complete justice, no other court, not even the High Courts, can arrogate to itself such extraordinary jurisdiction.”
Furthermore, the Bench, while elaborating on the concept of ‘mutual consent’, observed that “the existence of a pre-determined and continuing state of mind on the part of both spouses to bring the marriage to an end is a sine qua non for invoking Section 13B of the HMA. Without such mutuality of intention, the jurisdiction of the Court to grant divorce under this provision does not arise.”
Advocates Nandini Sen appeared for the appellant, while Advocate Gauri Gupta represented the respondent.
Background
The marriage between the Appellant and Respondent was solemnised in 1992 in accordance with Hindu rites and ceremonies. However, the respondent allegedly entered into an adulterous relationship with a coworker. The respondent then approached the Family Court seeking a divorce on the grounds of cruelty under the Hindu Marriage Act. The appellant, in turn, filed her own petition alleging adultery and cruelty.
Instead of adjudicating the petitions on their merits, the Family Court treated them as reflecting mutual consent and passed a decree of divorce under Section 13B.
Aggrieved by this order, the appellant approached the High Court, contending that mutual consent had never been expressed jointly and that the Family Court had exceeded its jurisdiction by treating separate petitions as equivalent to a consent petition.
Court’s Observations
The Delhi High Court, while hearing the matter, emphasised that mutual consent is not a procedural formality but a substantive requirement of law. Section 13B of the Hindu Marriage Act, the Court explained, mandates a joint petition by both spouses, followed by continuing consent till the decree is granted. The Court, while making these observations, remarked: “Mutual consent cannot be inferred from the mere filing of separate divorce petitions, nor can it be substituted by the independent desire of each party to end the marriage in their individual way. It is only when both parties consciously and jointly agree to dissolve the marriage that the jurisdiction of the court under Section 13B of the HMA is validly invoked.“
The Bench also relied upon Smruti Pahariya v. Sanjay Pahariya (2009), in which the Apex Court had ruled that “the element of consent must exist both at the time of presentation of the petition and continue until the decree is finally granted.”
Further reliance was placed on Anil Kumar Jain v. Maya Jain (2009), where the Supreme Court had clarified that “although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other courts can exercise such powers.”
The Bench further noted that the Committee on the Status of Women in India, 1974, and the 71st Law Commission Report, 1978, had both recommended recognition of divorce by mutual consent, but always on the foundation of express, unequivocal, and continuing consent.
While emphasising that “the legislative intent underlying Section 13B of the HMA makes it evident that ―mutual consent is not a mere procedural formality but a substantive statutory requirement for the grant of divorce”, the Court concluded that “the manner in which the learned Family Court proceeded to grant a decree of divorce in the present case runs contrary to the statutory framework and judicial discipline.”
Conclusion
Holding that the Family Court had assumed a jurisdiction wholly alien to it, the Delhi High Court set aside the decree of divorce by mutual consent and restored the original contested petitions to be adjudicated on the merits.
Cause Title: ABC VERSUS XYZ (Neutral Citation: 2025:DHC:8491-DB)
Appearances
Petitioner: Advocates Nandini Sen & Basab Sengupta.
Respondent: Advocates Gauri Gupta & Rishabh Kumar Jain