Sureshta Devi v. Om Prakash (1992)

Divorce by mutual consent is the route most likely to be used against a woman who has been pressured into signing. This is the decision that gives her the right to withdraw her consent at any time before the decree, and that reads the six-month waiting period as a period precisely for second thoughts. It settles a conflict among the High Courts and is the leading authority on what "living separately" and "mutual consent" mean in the provision.

The parties married on 21 November 1968 and lived together for about six or seven months. The wife did not stay with the husband thereafter, except from 9 December 1984 to 7 January 1985 pursuant to a court order — and it appears they did not live as husband and wife even then.

On 8 January 1985 both came to Hamirpur, the wife accompanied by her counsel. After about an hour's discussion they moved a joint petition for divorce by mutual consent in the District Court. On 9 January the court recorded their statements and left the matter there.

On 15 January 1985, a week later, the wife applied to the court stating that her statement had been obtained under pressure and threat from the husband; that she had not even been allowed to see or meet her relations to consult them before the petition was filed, nor were they permitted to accompany her to court; that she would not be a party to the petition; and she prayed for its dismissal.

After a remand, the District Judge dismissed the petition for divorce. The High Court reversed and granted the decree, holding that a spouse who has consented cannot unilaterally withdraw, that such withdrawal does not take away the court's jurisdiction if the consent was otherwise free, and finding that she had consented without force, fraud or undue influence.

The appeal was allowed and the decree of dissolution set aside. Mutual consent must continue until the decree is passed. If at the hearing one party says the consent is withdrawn, the court has no jurisdiction to pass a decree of divorce by mutual consent.

1. Both stages must be joint. The petition must be presented to the court jointly by both parties, and the motion for hearing under the second sub-section must also be by both.

1. Three requirements in the first stage. That they have been living separately for a period of one year; that they have not been able to live together; and that they have mutually agreed that the marriage should be dissolved.

1. "Living separately" means not living as husband and wife. It has no reference to the place of living. Parties may live under the same roof by force of circumstances and yet not live as husband and wife; they may live in different houses and yet live as husband and wife. What is necessary is that they have no desire to perform marital obligations, and with that mental attitude have been living separately for the year immediately preceding the petition.

1. The second requirement points to breakdown. That they have not been able to live together indicates the concept of a broken-down marriage which the parties cannot reconcile.

1. The waiting period is for reflection. Filing the petition does not authorise the court to make a decree; there is a waiting period of six to eighteen months. That interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In that transitional period one party may have second thoughts and change their mind. Nothing in the section prevents that, and the section does not say that a change of mind must be by both parties.

1. Reject the view that consent is fixed at the time of filing. The High Courts of Bombay, Delhi and Madhya Pradesh had held that consent is fixed at the time of filing, drawing an analogy from the rule that one of several plaintiffs cannot withdraw a joint suit. That approach is untenable. At the time of filing the parties know their petition does not by itself snap marital ties and that a further step is needed. The second sub-section requires the motion of both parties and that the petition not be withdrawn in the meantime — so there must also be mutual consent when the court is moved for the decree.

1. Otherwise it would not be a consent decree at all. If the court could act on the initial petition alone, it could make an enquiry and pass a divorce decree at the instance of one party against the consent of the other, which could not be regarded as a decree by mutual consent and would negate the whole idea of mutuality. The court must also be satisfied that the consent was not obtained by force, fraud or undue influence, which itself contemplates an opportunity to withdraw.

1. Hearing "the parties" means both. If at that stage one says the consent is withdrawn or that they are not a willing party, no decree can follow. Mutual consent is a sine qua non and must continue until the decree is passed; the consent must be a valid subsisting consent when the case is heard.

It opens the whole of mutual-consent divorce: the two stages, the three requirements of the first, the meaning of living separately, and the waiting period. Use it especially where the facts suggest a consent extracted quickly, without the woman being allowed to consult anyone.

It disposes of the view that consent is irrevocable once the joint petition is filed, and the analogy drawn from the withdrawal of a joint civil suit.

It does not decide anything about the waiver of the waiting period, which was worked out later in Amardeep Singh v. Harveen Kaur (2017), set out in its own chapter in this unit: the six-month period in s. 13B(2) is directory, not mandatory, and the court dealing with the matter may waive it on the four conditions laid down there. A complete answer should mention that alongside; nor does it hold that a spouse may withdraw after the decree. Note also that the consent bar is a separate safeguard: even a subsisting consent will not do if obtained by force, fraud or undue influence.