Supreme Court of India
HITESH BHATNAGARversusDEEPA BHATNAGAR
- Citation
- 2011 INSC 306
- Decided
- 18 April 2011
- Disposal
- Dismissed
- Bench
- D K JAIN
Holding
A decree of divorce by mutual consent can be granted only if both parties make a joint second motion within six to eighteen months and the petition is not withdrawn; consent may be withdrawn at any time before the decree, and Article 142 cannot be used to override this requirement.
Summary
Hitesh Bhatnagar and Deepa Bhatnagar, married under the Hindu Marriage Act, filed a joint petition for divorce by mutual consent in 2001. Before the required second motion, Deepa withdrew her consent after the 18‑month period, leading the trial court to dismiss the petition. The appellant appealed, arguing that the 18‑month window barred withdrawal of consent and that the marriage was irretrievably broken, invoking Article 142 of the Constitution. The Supreme Court held that Section 138(2) of the Hindu Marriage Act requires a joint second motion within six to eighteen months and that consent may be withdrawn at any time before a decree is passed; without both parties’ consent the court lacks jurisdiction to grant a mutual‑consent divorce. The Court also ruled that Article 142 is an extraordinary power and cannot be used to dissolve a marriage where one party still wishes to continue it. Consequently, the appeal was dismissed.
Issues considered
- Whether consent given in a petition for divorce by mutual consent under Section 138(1) can be withdrawn after the expiry of the 18‑month period.
- Whether a court can grant a decree of divorce by mutual consent when one party has withdrawn consent, and if so, under what circumstances.
- Whether Article 142 of the Constitution can be invoked to dissolve a marriage deemed irretrievably broken despite the withdrawal of consent.
Legislation cited
- Constitution of Indias. Article 142
- Hindu Marriage Act, 1955s. 138(1), s. 138(2)
Subjects
divorce by mutual consentHindu Marriage Actwithdrawal of consentArticle 142irretrievable breakdown of marriagefamily lawjurisdictionmutual consent decree
Judgment
'-·
[2011) 6 S.C.R. 118
A HITESH BHATNAGAR
v.
DEEPA BHATNAGAR
(Civil Appeal No. 6288 of 2008)
APRIL 18, 2011
B
[D.K. JAIN AND H.L. DAnu, JJ.]
Hindu Marriage Act, 1955 - s. 138 - Petition for divorce
by mutual consent - Withdrawal of consent - Whether the
C consent Once given can be subsequently withdrawn by one
of the parties after the expiry of 18 months from the date of
the filing of the petition in accordance with s.138(1); and
whether the Court can grant a decree of divorce by mutual
consent when the consent has been withdrawn by one of the
D parties, and If so, under what circumstances - Held: The
language employed in s. 138(2) is clear- If the second motion
is not made within the period of 18 months, then the Court is
not bound to pass a decree of dlvon:e by mutual consent -
Besides, from the language of the Section, as well as the
E settled law, it is clear that one of the parties may withdraw
consent at any time before the passing of the decree - The
most important requirement for a grant of a divorce by mutual
consent is free consent of both the parties - Unless there is
a complete agreement between husband and wife for the
F dissolution of the marriage and unless the Court is completely
satisfied, it cannot grant a decree for divorce by mutual
consent - Otherwise, the expression 'divorce by mutual
consent' would be otiose - In the present fact scenario, the
second motion was never made by both the parties as
mandatorily required under the law, and no Court can pass a
G decree of divorce in the absence of that - The eighteen
month period is specified only to ensure quick disposal of
cases of divorce by mutual consent, and not to sPec/fy the
time period for withdrawal of consent - Non-withdrawal of
H 118
HITESH BHATNAGAR v. DEEPA BHATN,AGAR 119
consent before expiry of the said eighteen months has. no· A
bearing.
Constitution of India, 1950 - Article 142 ... Power under
- Exercise of .. Prayer ·of appellant-husband before Supmme
Court that his marriage with respondent-wife had irretrievably 8
broken down and the Court should dissolve the marriage by
exercising its jurisdiction under Article 142 - Held: The power
under Article 142 is plenipotentiary - However, it is an
extraordinary jurisdiction vested by the Constitution with
implicit trust and faith and, therefore, extraordinary care and
caution has to be obsetved while exercising this jurisdiction C
- This Court uses its extraordinary power to dissoive a
marriage as having irretrievably broken down only when it is
impossible to save the marriage and all efforts made in that
regard would, to the mind of the Court, be counterproductive
""' Even if the chances are infinitesimal for the marriage to D
survive, it is not for this Court to use its power under Article
142 to dissolve the marriage as having broken down
irretrievably - In the present case, in light of the facts anti
circumstances, it would be travesty of justice to dissolve the
marriage as having broken down .... Though there is bitterness E
amongst the parties and they have not even lived as husband
and wife for the past about 11 years, it is hoped that they will
give this union another chance, if not for themselves, fOr the
future of their daughter.
F
The appellant-husband and the respondent-wife had
got married according to the Hindu Marriage Act, 1955.
Th' parties filed a petition under Section 138 of th• Act
for dissolution of the marriage by grant of a decree of
divorce by mutual consent However; before the stage of G
second motion and passing of the decree of divorce, the
respondent withdrew her consent by filing an appllcation.
The withdrawal of consent was after a period of elghtee"
months of filing the petition and· In view of this, the
petition came to be dismissed by the trial court; thoug~ H
120 SUPREME COURT REPORTS [2011) 6 S.C.R.
A the appellant insisted for passing of the decree. The
appellant, being aggrieved, filed appeal before the High
Court, which was dismissed,
In the Instant appeal, the questions that arose for
· consideration were: 1) whether the consent once given
8
In a petition for divorce by mutual consent can be '
subsequently withdrawn by one of the parties after the
expiry of 18 months from the date of the filing of the
petition· in accordance with Section 138 (1) of the Hindu
C Marriage Act, 1955; and 2) whether the Court can grant a
decree of divorce by mutual consent when the consent
has been withdrawn by one of the parties, and if so, under
what circumstances.
Dismissing the appeal, the Court
D
HELD:1.1. The contention raised by the appellant that
the trial court was bound to grant divorce if the consent
was not withdrawn within a period of 18 months in view
of the language employed in Section 138(2) of the Hindu
E Marriage Act, 1955, has no merit. The language employed
in Section 138(2) of the Act is clear. The Court is bound
to pass a decree of divorce declaring the marriage of the
parties before it to be dissolved with effect from the date
of the decree, if the following conditions are met: a) A
second motion of both the parties is made not before 6
F months from the date of filing of the petition as required
under sub-section (1) and not later than 1~ months; b)
After hearing the parties and making such inquiry as it
th.inks fit, the Court is satisfied that the averments in the
petition are true; and c) The petition is not withdrawn by
G either party at any time before passing the decree. 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
H
HITESH BHATNAGAR v. DEEPA BHATNAGAR 121
clear that one of the parties may withdraw their consent A
at any time before the passing of the decree. The most
important requirement for a grant of a divorce by mutuai
consent is free consent of both the parties. In other
words, unless there is a complete agreement between
husband and wife for the dissolution of the marriage and B
unless the Court is completely satisfied, it cannot grant
a decree for divorce by mutual consent. Otherwise, the
expression 'divorce by mutual consent' would be otiose.
[Paras 13, 14 and 15) [132-F-H; 133-A-F] . -
1.2. In the present fact scenario, the second motion C
was never made by both the parties as is a mandatory
requirement of the law, and 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. The eighteen month period was specified D
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.
[Para 16) [133-F-G]
E
Smt. Sureshta Devi v. Om Prakash (1991) 2 SCC 25:
1991 (1) SCR 274 and Smruti Pahariya v. Sanjay Pahariya
(2009) 13 sec 338: 2009 (8) SCR 631 - relied on.
Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226:
F
1997 (2) SCR 875 - referred to.
2.1. The appellant further submitted that the marriage
had irretrievably broken down and prayed that the Court
should dissolve the marriage by exercising its jurisdiction .
under Article 142 of the Constitution. In support of his G
request, he placed reliance upon made by this Court in
the case of Anil Kumar Jain, wherein though the con.se.nt
1
was withdrawn by the wife, this Court found the marriage
to have been irretrievably broken down and granted a
H
122 SUPREME COURT REPORTS [2011] 6 S.C.R.
A decree of divorce by invoking its power under Article 142.
This Court is not inclined to entertain this submission of
the appellant since the facts In that case are not akin to
this case. [Para 18] [134·A-C)
2.2. The power under Article 142 of the Constitution
8
is plenipotentlary. However, it Is an extraordinary
jurisdiction vested by the Constitution with implicit trust
and faith and, therefore, extraordinary care and caution
has to be observed while exercising this jurisdiction.
Irretrievable breakdown of a marriage cannot be the sole
C ground for the dissolution of a marriage, a view that has
withstood the test of time. This Court uses its
extraordinary power to dissolve a marriage as having
irretrievably broken down only when it is impossible to
save the marriage and all efforts made in that regard
D would, to the mind of the Court, be counterproductive
[Paras 21, 22 and 24] (135-E-F; 136-C]
2.3. It is settled law that this Court grants a decree of
divorce only in those situations in which the Court is
E convinced beyond any doubt that there is absolutely no
chance of the marriage surviving and it is broken beyond
repair. Even if the chances are infinitesimal for the
marriage to survive, it is not for this Court to use its power
under Article 142 to dissolve the marriage as having
F broken down irretrievably. [Para 25] [136-D-E]
2.4. In the present case, time and again, the
respondent has stated that she wants this marriage to
continue, especially in order to secure the future of their
minor daughter, though her husband wants it to end. She
G has stated that from the beginning, she never wanted the
marriage to be dissolved. 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 light
of these facts and circumstances, it would be travesty of
H
HITESH BHATNAGAR v. DEEPA BHATNAGAR 123
justice to dissolve this marriage as having broken down. A
Though there is bitterness amongst the parties and they
have not even lived as husband and wife for the past
about 11 years, it is hoped that they will give this union
another chance, If not for themselves, for the future of
their daughter. [Para 26] [136·f·H] B
Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415: 2009
(14) SCR 90 - distinguished.
Laxmidas Morarji v. Behrose Darab Madan, (2009) 1O
SCC 425: 2009 (14) SCR 777; Manish Goel v. Rohini Goel c
{2010) 4 sec 393: 2010 (2) SCR 414; v.Bhagat v. Mrs. D.
Bhagat (1994) 1 SCC 337: 1993 (3) Suppl. SCR 796; Savitri
Pandey v.Prem Chandra Pandey (2002) 2 SCC 73: 2002 (1)
SCR 50 and Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511:
2007 (4) SCR 428 - relied on. D
Case. Law Reference:
1991 (1) SCR 274 relied on Para 8, 9,11,
12,13
E
1997 (2) SCR 875 referred to Para 10, 11
2009 (8) SCR 631 relied on Para 12
2009 (14) SCR 90 distinguished Para 18
2009 (14) SCR 777 relied on Para 19 F
2019 (2) SCR 414 relied on Para 20
1993 (3) Suppl. SCR 796 relied on Para 22
2002 (1) SCR .so relied on Para 23 G
2007 (4) SCR 428 relied on Para 24
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6288 of 2008.
H
124 SUPREME COURT REPORTS [2011) 6 S.C.R.
A From the Judgment & Order dated 8.11.2006 of the High
Court of Punjab and Haryana at Chandigarh in FAO No. 193
of 2003.
Hitesh Bhatnagar-in-Person, Devendra Singh for the
B Appellant
Deepa Bhatnagar-in-Person, Harshvir Pratap Sharma,
Sharad Kumar, Vaish, K.S. Rana for the Respondent.
The Judgment of the Court was delivered by
c H.L. DATTU, J. 1. Marriages are made in heaven, or so
it is said. But we are more often than not made to wonder what
happens to them by the time they descend down to earth.
Though there is legal machinery in place to deal with such
cases, these are perhaps the toughest for the courts to deal
0 with. Such is the case presently before us.
2. The appellant-husband and the respondent-wife got
married according to the Hindu Marriage Act, 1955 [hereinafter
referred to as 'the Act'] in 1994, and are blessed with a
E daughter a year thereafter. Some time in the year 2000, due
to differences in their temperaments, they began to live
separately from each other and have been living thus ever
since. Subsequently, in 2001, the parties filed a petition under
Section 138 of the Act before the District Court, Gurgaon, for
F dissolution of the marriage by grant of a decree of divorce by
mutual consent. However, before the stage of second motion
and passing of the decree of divorce, the respondent withdrew
her consent, and in view of this, the petition came to be
dismissed by the Ld. Addi. District Judge, Gurgaon, though the
G appellant insisted for passing of the decree. The appellant,
being aggrieved, has filed appeal No. F.A.O. No. 193 of 2003,
before the High Court of Punjab and Haryana. The Learned
Judge, by his well considered order, dismissed the appeal vide
order dt. 08.11.2006. Being aggrieved by the same, the
H appellant is before us in this appeal.
HITESH BHATNAGAR v. DEEPA BHATNAGAR 125
[H.L. DATIU, J.]
3. We have heard the learned counsel for the parties and A
since the parties wanted to ventilate their grievances, we have
heard them also.
4. The issues that arise for our consideration and decision
are as under: 8
(a) Whether the consent once given in a petition for
divorce by mutual consent can be subsequently
withdrawn by one of the parties after the expiry of
18 months from the date of the filing of the petition
in accordance with Section 138 (1) of the Act. C
(b) Whether the Court can grant a decree of divorce
by mutual consent when the consent has been
withdrawn by one of the parties, and if so, under
~~ci~m~nces. o
5. In order to answer the· issues that we have framed for
our consideration and decision, Section 138 of the Act requires
to be noticed :-
138. Divorce by mutual consent. - (1) Subject to the E
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, F
1976, (68of1976.) 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 hav.e mutually
agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than G
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 H
•
126 SUPREME COURT REf!ORTS [2011) 6 S.C.R.
A 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 o~the decree.
8 6. Admittedly, the parties had filed a petition for divorce
by mutual consent expressing their desire to dissolve their
marriage due to temperameQtal incompatibility on 17.08.2001.
However, before the stage of second motion, the respondent
withdrew her consent by filing an application aated 22.03.2003.
The withdrawal of consent was after a period of eighteen
C . months of filing the petition. The respondent, appearing in-
person, submits that she was taken by surprise when she was
asked by the appellant for divorce, and had given the initial
consent under mental stress and duress. She states that she
never wanted divorce and is even now willing to live with the
D appellant as his wife.
7. The appellant, appearing in-person, submits that at the
time of filing of the petition, a settlement was reached between
the parties, wherein it was agreed that he would pay her '3.5
E lakhs, of which he states he has already paid '1.5 lakhs in three
installments. He further states in his appeal, as well as before
us, that he is willing to take care of the respondent's and their
daughter's future interest, by making a substantial financial
payment in order to amicably settle the matter. However,
F despite repeated efforts for a settlement, the respondent is not
agreeable to a decree of divorce. She says that she wants to
live with the appellant as his wife, especially for the future of
their only child, Anamika.
8. The question whether consent once given can be
G withdrawn in a proceeding for divorce by mutual consent is no
more res integra. This Court, in the case of Smt. Sureshta Devi
v. Om Prakash, (1991) 2 SCC 25, has concluded this issue
and the view expressed in the said decision as of now holds
the field.
H
HITESH BHATNAGAR v. DEEPA BHATNAGAR 127
[H.L. DATIU, J.)
9. In the case of Sureshta Devi (supra.), this Coun took A
the view:
"9. The 'living separately' for a period of one year should
be immediately preceding the presentation of the petition.
It is necessary that immediately preceding the B
presentation of petition, the parties must have been living
separately. The expression 'living separately', connotes to
our mind not living like husband and wife. It has no
reference to the place of living. The parties may live unde~
the s~me roof by force of circumstances, and yet they may
not be living as husband and wife. The parties may be living C
in different houses and yet they could live as husband and
wife. What seems to be necessary is that they have no
desire to perform marital obligations and with that mental
attitude they have been living separately for a period of one
year immediately preceding the presentation of the D
petition. The second requirement that they 'have not been
able to live together' seems to .indicate the concept of
broken down marriage and· it would not be possible to
reconcile themselves. The third requirement is that they
have mutually agreed that the marriage should be E
dissolved.
1O. Under sub-section (2) the parties are required to make
a joint motion not earlier than six months after the date of
presentation of the petition and not later than 18 months F
after the said date. This motion enables the court to
proceed with the case in order to satisfy itself about the
genuineness of the averments in the petition and also to
find out whether the consent was not obtained by force,
fraud or undue influence. The court may make such inquiry G
as it thinks fit including the hearing or examination of the
parties for the purpose of satisfying itself whether the
averments in the petition are true. If the court is satisfied
that the consent of parties was not obtained by force, fraud
or undue influence and they have mutually agreed that the H
128 SUPREME COURT REPORTS [2011) 6 S.C.R.
A marriage should be dissolved, it must pass a decree of
divorce."
On the question of whether one of the parties may withdraw
the consent at any time before the actual decree of divorce is
passed, this Court held:
8
"13. From the analysis of the section, it will be apparent
that the filing of the petition with mutual consent does not
authorise the court to make a decree for divorce. There is
a period of waiting from 6 to 18 months. This interregnum
c was obviously intended to give time and opportunity to the
parties to reflect on their move and seek advice from
relations and friends. In this transitional period one of the
parties may have a ~econd thought and change the mind
not to proceed with the petition. The spouse may not be a
D party to the joint motion under sub-section (2). There is
nothing in the section which prevents such course. The
section does not provide that if there is a change of mind
it should not be by one party alone, but by both. The High
Courts of Bombay and Delhi have proceeded on the
E ground that the crucial time for giving mutual consent for
divorce is the time of filing the petition and not the time
when they subsequently move for divorce decree. This
approach appears to be untenable. At the time of the
petition by mutual consent, the parties are not unaware that
F their petition does not by itself snap marital ties. They know
that they have to take a further step to snap marital ties.
Sub-section (2) of Section 13-8 is clear on this point. It
provides that "on the motion of both the parties .... if the
petition is not withdrawn in the meantime, the court shall
... pass a decree of divorce .. .". What is significant in this
G
provision is that there should also be mutual consent when
they move the court with a request to pass a decree of
divorce. Secondly, the court shall be satisfied about the
bona fides and the consent of the parties. If there is no
mutual consent at the time of the enquiry, the court gets
H
HITESH BHATNAGAR v. DEEPA BHATNAGAR 129
[H.L. DATIU, J.]
no jurisdiction to make a decree for divorce. If the view is A
otherwise, the court could make an enquiry and pass a
·divorce decree even at the instance of one of the parties
and against the consent of the other. Such a decree cannot
be regarded as decree by mutual consent."
B
10. In the case of Ashok Hurra v. Rupa Bipin Zaveri,
(1997) 4 SCC 226, this Court in passing reference, observed:
"16. We are of opinion that in the light of the fact-situation
present in this case, the conduct of the parties, the
admissions made by the parties in the joint petition filed C
in Court, and the offer made by appellant's counsel for
settlement, which appears to be bona fide, and the
conclusion reached by us on an overall view of the matter,
it may not be necessary to deal with the rival pleas urged
by the parties regarding the scope of Section 13-6 of the D
Act and the correctness or otherwise of the earlier decision
of this Court in Sureshta Devi case or the various High
Court decisions brought to our notice, in detail. However,
with great respect to the learned Judges who rendered the
decision in Sureshta Devi case, certain observations E
therein seem to be very wide and may require
reconsideration in an appropriate case. Jn the said case,
the facts were:
The appellant (wife) before this Court married the
respondent therein on 21-11-1968. They did not stay F
together from 9-12-1984 onwards. On 9-1-1985, the
husband and wife together moved a petition under Section
13-B of the Act for divorce by mutual consent. The Court
recorded statements of the parties. On 15-1-1985, the wife
filed an application in the Court stating that her statement G
dated 9-1-1985 was obtained under pressure and threat.
She prayed for withdrawal of her consent for the petition
filed under Section 13-B and also prayed for dismissal of
the petition. The District Judge dismissed the petition filed
under Section 13-B of the Act. In appeal, the High Court H
130 SUPREME COURT REPORTS [2011] 6 S.C.R.
A observed that the spouse who has given consent to a
petition for divorce cannot unilaterally withdraw the consent
and such withdrawal, however, would not take away the
jurisdiction of the Court to dissolve the marriage by mutual
consent, if the consent was otherwise free. It was found that
8 the appellant (wife) gave her consent to the petition without
any force, fraud or undue influence and so she was bound
by that consent. The issue that came up for consideration
before this Court was, whether a party to a petition for
divorce by mutual consent under Section 13-8 of the Act,
c can unilaterally withdraw the consent and whether the
consent once given is irrevocable. It was undisputed that
the consent was withdrawn within a week from the date of
filing of the joint petition under Section 13-8. It was within
the time-limit prescribed under Section 13-8(2) of the Act.
D On the above premises, the crucial question was whether
the consent given could be unilaterally withdrawn. The
question as to whether a party to a joint application filed
under Section 13-8 of the Act can withdraw the consent
beyond the time-limit provided under Section 13-8(2) of
the Act did not arise for consideration. It was not in issue
E at all. Even so, the Court considered the larger question
as to whether it is open to one of the parties at any time
till a decree of divorce is passed to withdraw the consent
given to the petition. In considering the larger issue,
conflicting views of the High Courts were adverted to and
F finally the Court held that the mutual consent should
continue till the divorce decree is passed. In the light of the
clear import of the language employed in Section 13-6(2)
of the Act, it appears that in a joint petition duly filed under
Section 13-8(1) of the Act, motion of both parties should
G be made six months after the date of filing of the petition
and not later than 18 months, if the petition is not withdrawn
in the meantime. In other words, the period of interregnum
of 6 to 18 months was intended to give time and
opportunity to the parties to have a second thought and
H change the mind. If it is not so done within the outer limit
HITESH BHATNAGAR v. DEEPA BHATNAGAR 131
[H.L. DATIU, J.]
of 18 months, the petition duly filed under Section 13-B(1) A
and still pending shall be adjudicated by the Court as
provided in Section 13-B(2) of the Act. It appears to us,
the observations of this Court to the effect that mutual
consent should continue till the divorce decree is passed,
even if the petition is not withdrawn by one of the parties B
within the period of 18 months, appears to be too wide and
does not logically accord with Section 13-B(2) of the Act.
However, it is unnecessary to decide this vexed issue in
this case, since we have reached the conclusion on the
fact-situation herein. The decision in Sureshta Devi case c
may require reconsideration in an appropriate case. We
leave it there."
11. These observations of this Court in the case of Ashok
Hurra (supra) cannot be considered to be ratio decidendi for
all purposes, and is limited to the facts of that case. In other D
words, the ratio laid down by this Court in the case of Sureshta
pevi (supra) still holds the field.
12. In the case of Smruti Pahariya v. Sanjay Pahariya,
(2009) 13 SCC 338, a bench of three learned judges of this E
Court, while approving the ratio laid down in the case of
Sureshta Devi (supra), has taken the view :-
"40. In the Constitution Bench decision of this Court in
Rupa Ashok Hurra this Court did not express any view
contrary to the views of this Court in Sureshta Devi. We F
endorse the views taken by this Court in Sureshta Devi as
we find that on a proper construction of the provision in
Sections 13-8(1) and 13-8(2), there is no scope of
doubting the views taken in Sureshta Devi. In fact the
decision which was rendered by the two learned Judges G
of this Court in Ashok Hurra has to be treated to be one
rendered in the facts of that case and it is also clear by
the observations of the learned Judges in that case.
41. None of the counsel for the parties argued for H
132 SUPREME COURT REPORTS [2011] 6 S.C.R.
A reconsideration of the ratio in Sureshta Devi.
42. We are of the view that it is only on the continued
mutual consent of the parties that a decree for divorce
under Section 13-B of the said Act can be passed by the
court. If petition for divorce is not formally withdrawn and
B
is kept pending then on the date when the court grants the
decree, the court has a statutory obligation to hear the ,
parties to ascertain their consent. From the absence of
one of the parties for two to three days, the court cannot
presume his/her consent as has been done by the learned
c Family Court Judge in the instant case and especially in
its fact situation, discussed above.
43. In our view it is only the mutual consent of the parties
which gives the court the jurisdiction to pass a decree for
D divorce under Section 13-8. So in cases under Section
13-8, mutual consent of the parties is a jurisdictional fact.
The court while passing its decree under Section 13-8
would be slow and circumspect before it can infer the
existence of such jurisdictional fact. The court has to be
E satisfied about the existence of mutual consent between
the parties on some tangible materials which demonstrably
disclose such consent."
13. The appellant contends that the Additional District
Judge, Gurgaon, was bound to grant divorce if the consent was
F not withdrawn within a period of 18 months in view of the
language employed in Section 138(2) of the Act. We find no
merit in the submission made by the appellant in the light of
the law laid down by this Court in Sureshta Devi's case (supra).
G 14. The language employed in Section 138(2) of the Act
is clear. The Court is bound to pass a decree of divorce
declaring the marriage of the parties before it to be dissolved
with effect from the date of the decree, if the following conditions
are met:
H
HITESH BHATNAGAR v. DEEPA BHATNAGAR 133
[H.L. DATTU, J.]
a. A second motion of both the parties is made not A· ·
before 6 months from the date of filing of the
petition as required under sub-section O) and not
later than 18 months;
b. After hearing the parties and making such inquiry
8
as it thinks fit, the Court is satisfied that the
averments in the petition are true; and
c. The petition is not withdrawn by either party at any
time before passing the decree;
c
15. 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 o
before the passing of the decree. The most important
requirement for a grant of a divorce by mutual consent is free
consent of both the parties. In other words, unless there is a
complete agreement between husband and wife for the
dissolution of the marriage and unless the Court is completely E
satisfied, it cannot grant a decree for divorce by mutual consent.
Otherwise, in our view, the expression 'divorce by mutual
consent' would be otiose.
16. In the present fact scenario, the second motion was
never made by both the parties as is a mandatory requirement F
of the law, and as has been already stated, 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 eighteen month period
was specified only to ensure quick disposal of cases of divorce G
by mutual consent, and not to specify the time period for
withdrawal of consent, as canvassed by the appellant.
17. In the light of the settled position of law, we do not find
· any infirmity with the orders passed by the Ld. Single Judge.
H
134 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 18. As a last resort, the appellant submits that the marriage
had irretrievably broken down and prays that the Court should
dissolve the marriage by exercising its jurisdiction under Article
142 of the Constitution of India. In support of his request, he
invites our attention to the observation made by this Court in
B the case of Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415,
wherein though the consent was withdrawn by the wife, this
Court found the marriage to have been irretrievably broken
down and granted a decree of divorce by invoking its power
under Article 142. We are not inclined to entertain this
c submission of the appellant since the facts in that case are not
akin to those that are before us. In that case, the wife was
agreeable to receive payments and property in terms of
settlement from her husband, but was neither agreeable for
divorce, nor to live with the husband as his wife. It was under
these extraordinary circumstances that this Court was compelled
0
to dissolve the marriage as having irretrievably broken down.
Hence, this submission of the appellant fails.
19. In the case of Laxmidas Morarji v. Behrose Darab
Madan, (2009) 10 SCC 425, a Bench of three learned Judges
E (of which one of us was a party), took the view:
"25. Article 142 being in the nature of a residuary power
based on equitable principles, the Courts have thought it
advisable to leave the powers under the article undefined.
F The power under Article 142 of the Constitution is a
constitutional power and hence, not restricted by statutory
enactments. Though the Supreme Court would not pass
any order under Article 142 of the Constitution which would
amount to supplanting substantive law applicable or
ignoring express statutory provisions dealing with the
G
subject, at the same time these constitutional powers
cannot in any way, be controlled by any statutory provisions.
However, it is to be made clear that this power cannot be
used to supplant the law applicable to the case. This
means that acting under Article 142, the Supreme Court
H
HITESH BHATNAGAR v. DEEPA BHATNAGAR 135
[H.L. DATIU, J.]
cannot pass an order or grant relief which is totally A
· inconsistent or goes against the substantive or statutory
enactments pertaining to the case. The power is to be used
sparingly in cases which cannot be effectively and
appropriately tackled by the existing provisions of law or
when the eY.isting provisions of law cannot bring about B
complete justice between the parties."
20. Following the above observation, this Court in the case
of Manish Goel v. Rohini Goel, (2010) 4 SCC 393, while
refusing to dissolve the marriage on the ground of irretrievable C
breakdown of marriage, held:
"19. Therefore, the law in this regard can be summarised
to the effect that in exercise of the power under Article 142
of the Constitution, this Court generally does not pass an
order in contravention of or ignoring the statutory provisions D
nor is the power exercised merely on sympathy." ·· ·
21. In other words, the power under Article 142 of the
Constitution is plenipotentiary. However, it is an extraordinary
jurisdiction vested by the Constitution with implicit trust and faith E
and, therefore, extraordinary care and caution has to be
observed while exercising this jurisdiction.
22. This Court in the case of V. Bhagat v. Mrs. D. Bhagat,
(1994) 1 sec 337 held that irretrievable breakdown of a
marriage cannot be the sole ground for the dissolution of a F
marriage, a view that has withstood the test of time.
23. In the case of Savitri Pandey v. Prem Chandra
Pandey, (2002) 2 SCC 73, this Court took the view:
G
"17. The marriage between the parties cannot be
dissolved only on the averments made by one of the
parties that as the marriage between them has broken
down, no useful purpose would be served to keep it alive.
The legislature, in its wisdom, despite observation of this
H
136 SUPREME COURT REPORTS [2011) 6 S.C.R.
A Court has not thought it proper to provide for dissolution
of the marriage on such averments. There may be cases
where, on facts, it is found that as the marriage has
become dead on account of contributory acts of
commission and omission of the parties, no useful purpose
e would be served by keeping such marriage alive. The
sanctity of marriage cannot be left at the whims of one of
the annoying spouses ...... ."
24. This Court uses its extraordinary power to dissolve a
marriage as having irretrievably broken down only when it is
C impossible to save the marriage and all efforts made in that
regard would, to the mind of the Court, be counterproductive
(See Samar Ghosh v. Jaya Ghosh •. (2007) 4 SCC 511).
25. It is settled law that this Court grants a decree of
D divorce only in those situations in which the Court is convinced
beyond any doubt that there is absolutely no chance of the
marriage surviving and it is broken beyond repair. Even if the
chances are infinitesimal for the marriage to survive, it is not
for this Court to use its power under Article 142 to dissolve the
E marriage as having broken down irretrievably. We may make
it clear that we have not finally expressed any opinion on this
issue.
26. In the present case, time and again, the respondent
has stated that she wants this marriage to continue, especially
F in order to secure the future of their minor daughter, though her
husband wants it to end. She has stated that from the beginning,
she never wanted the marriage to be dissolved. 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 light
G of these facts and circumstances, it would be 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,
H for the future of their daughter. We conclude by quoting the great
HITESH BHATNAGAR v. DEEPA BHATNAGAR 137
[H.L. DATIU, J.]
poet George Eliot "What greater thing is there for two human A
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
~~· B
27. Before parting with the case, we place on record our
appreciation for the efforts made by Shri. Harshvir Pratap
Sharma, learned counsel, to bring about an amicable
settlement between the parties.
c
28. In the result, the appeal fails. Accordingly, it is
dismissed. No order as to costs.
B.B.B. Appeal dismissed .
•
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