Holding

A Hindu marriage may be dissolved only on the grounds expressly listed in Section 13 of the Hindu Marriage Act, and a decree of divorce cannot be obtained merely by the parties' consent or by payment of consideration.

Summary

The Supreme Court examined an appeal by Sanjeeta Das against a decree of divorce granted by the Orissa High Court on the basis of an affidavit in which the husband, Tapan Kumar Mohanty, offered to pay Rs 10 lakh as maintenance. The husband had earlier filed a petition under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955, alleging cruelty and desertion, but the Family Court had ordered restitution of conjugal life. The High Court, however, treated the affidavit as consent and granted divorce, effectively allowing the purchase of a divorce decree. The Supreme Court held that a Hindu marriage can be dissolved only on the grounds enumerated in Section 13 and that consent or monetary consideration cannot substitute for those statutory grounds. Consequently, the Court set aside the High Court’s order, restored the appeal against the Family Court’s judgment, and directed a fresh hearing. The appeals were allowed with costs.

Issues considered

Whether a decree of divorce can be granted on the basis of the parties' consent and payment of maintenance in lieu of statutory grounds under Section 13 of the Hindu Marriage Act, 1955.
Whether the High Court had jurisdiction to dissolve the marriage by treating the affidavit as consent.

Legislation cited

Hindu Marriage Act, 1955s. 13(1)(ia), s. 13(1)(ib), s. 138, s. 23A
Indian Penal Code, 1860s. 498A
Rajasthan Land Acquisition Act

Subjects

Hindu marriagedivorceSection 13Section 138consentpurchase of decreemaintenancefamily lawrestitution of conjugal life

Judgment

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1032 '' SUPREME COURT REPORTS ; (2010] 11 S.C.R.
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1' - . , (2010] 11 S.C.R. 1033
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A is neither vacant land available in the Lal Kothi area nor are,· i.
any' of the aforesaid • respondents-claima~ts is entitled to . 'I SANJEETA DAS A
allotment of any alternative land: · '~- :.,. . · . ;._·: '>. , • f v.
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''' TAPAN KUMARMOHANTY
4/ In.the li~h ~ ofthe ~fo;e~aid d~~i~;b~~!~j this Co~rt.
0 1
.· ·- '(Civil Appeal Nos.8196-8197of 2010) ·
and our discussion in Civil Appeal 8590 of 2003, we find that l
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. the cases of. the Respondents are devoid of any merit.· We, ''
, therefore, hold that the directions for payment of compensation l ' '• · [AFTAB ALAM.AND R.M: LODHA, JJ.] '
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and allotment of land under the Rajasthan Land Acquisition. l c

Act to the Respondents are illegal and without jurisdiction as~
t Hi~du Marriage ;.:ct. 19S5 .:... ss, 13 ahd 1JB ~ Df~~~lution
the award 'passed by1he land acquisition officer was only ari: ! of marriage - Consent of parties -·Relevance of - Husband
C offer· which itself.was a' nullity. They are not entitled to an~ t
seeking divorce..-; Family Court directed wife to resume co- C
allotment of 250 sq. ·yards of plot, for any direction to allot such•
plot of land could amount to unjust enrichment of a person who' ~I habitation. with the husband - Husband filed appeal; and in
the .appeal (iied affida_vit .declaring his willingness to pay
(
·· had sought to bind the Government, although, in law no such specified sum in consideration for grarit of divorce."'." High
blnding effect came into existence as the' land already vested , 't• Court paraphrased· the statement made in the affidavit and
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D in the Government. If any one of them has paid the ch~rges for made it the order of the court while decreeing divorce - D
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allotment of alternative land they can only get ba'ck th'e'same, Decree challenged by wife - Husband contended that the
from the competent authority, in which case, they shall be paid,
. ,interest at the rate of 7.5% p.a' from the date of the deposit of t
'
I
divorce decree could not be set aside since it was' passed with
the consent of the parties - Held: A Hindu marriage can be
the amount till the date of the payment. , I dissolved only on any of the grounds plainly and clearly·
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· D.G ... · Appeals disposed of. I
enumerated uls: 13 - The law does not permit the purchase E
• of a decree of divorce ·for consideration,> with or without the
-' ' . -~ . . ·{- ' -
l consent of the other side.- No court can assume jurisdiction
.. ~ ·-'
l to dissolve a Hindu m(!rriage simply on the basis. of. the
l consent of the parties", de hors the grounds enumerated ul
s. 13, 'unless the consenting parties proceed ·!1/~."138 - 9n
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,·,. l facts, in "any event, there is nothing to indicate. that the divorc~
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- ' . --- ' l decree was passed with the consent of the parties -, Order of
·-. : _; _.] -=
} High Court accordingly set a'side .:.·High Court directed to
hear and dispose of. the matter afresh. , ' ··· ·
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' · ·_ . .The respondent-husband filed a petition before the
Fa~ily· court· 'under ,sectiol)s 13(1 )(ia) and (ib) of the
,

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l Hindu Marriage Act, 1955, for dissolution of his marriage
on 'uie g'rounds of cruelty and, desertion. The Family
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Court directedthe appellant-wife to resume cohabitation
.. . . ' . . 1033 . H

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1034 SUPREME COURT REPORTS [2010] 11 S.C.R.

A with the respondent.

Aggrieved, the respondent filed appeal before the
High Court. In the appeal, he filed an affidavit declaring
his willingness to pay a sum of Rupees Ten lakhs as life
term maintenance of the appellant and for the expenses
8
of marriage of their daughter, in consideration of the
dissolution of his marriage with the appellant by a decree
of divorce and compounding of a criminal case instituted
against him by the appellant.
c The High Court paraphrased the statements made in
the affidavit filed by the respondent and made it the order
of the court, and granted a decree of divorce for
dissolution of the respondent's marriage.

D The question arising for consideration in the instant
appeal was: whether the impugned order of the High
Court was passed with the consent of the parties and for
that reason it does not warrant any interference by the
Supreme Court.
E Allowing the appeals, the Court

HELD:1. A Hindu marriage can be dissolved only on
any of the grounds plainly and clearly enumerated under
Section 13 of the Hindu Marriage Act, 1955. The law does
F not permit purchase of a decree of divorce for
consideration, with or without the consent of the other
side. [Para 5] [1037-1038-G-H]

2. No court can assume jurisdiction to dissolve a
Hindu marriage simply on the basis of the consent of the
G parties de hors the grounds enumerated under Section
13 of the Act, unless the consenting parties proceed
under Section 138 of the Act. In any event, on facts, there
is nothing to indicate that the impugned order was
passed by the High Court with the consent of the
H
SANJEETA DAS v. TAPAN KUMAR MOHANTY 1035

appellant. The affidavit referred to in the order of the High A
Court does not indicate that the appellant had given her
consent for dissolution of her marriage with the
respondent on payment of Rs. 10,00,000.00 (rupees ten
lakhs only). The consent of the parties, therefore, is of no
relevance in the matter, [Paras 6, 7] [1038-8-C; E-F] ---.. B

3. The order of the High Court is completely
unsustainable. It is set aside and the appeal against the
judgment and order passed by the Family Court is
restored to its file. The High Court is directed to hear and C
dispose of the appeal along with the connected appeal
afresh, in accordance with law. [Para 8] [1038-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8196-8197 of 2010.
D
From the Judgment & Order dated 02.09.2009 and in
MATA No. 59 of 2005 and dated 20.11.2009 in Misc. Case
No. 97 of 2009 in MATA No. 59 of 2005 of the High Court of
Orissa at Cuttack.

Manoj Kumat Das (for Sibo Sankar Mishra) for the E
appellant.

D.D. Singh, S.C. Paul (for Satyendra Kumar) for the
Respondent.
F
The Judgment of the Court was delivered by __
0
AFTAB ALAM, J. 1. Leave granted.

2. The order of a division bench of the Orissa High Court
that is before us in this appeal, though passed in a judicial G
proceeding, appears to us to be completely alien to the law.
The relevant facts to see the impugned order in perspective
may be stated thus.

3. The respondent and the appellant were married in
accordance with the Hindu religious rites. About t.hree years H
1036 SUPREME COURT 1R5PGRTS f2;010] 11 S.C.R.

A after the marriage, he filed a 1petiti0n (Givil Proceeding No.136
of 1997) before the Family Gow rt, Rour.kela for dissolution of
his marriage with the appellant on grounds ·Of ·cruelty and
desertion [clauses (ia) and (ib) of section 13(1) of the Hindu
Marriage· Act, 1955]. The appellant strongly resisted the grounds
s taken by the respondent for dissolution of their marriage and
took the plea that in reality she had been deserted and
subjected to cruelty by the respondent For the putp'ose 'Of the
present appeal, there rs no treed for YS to go into the details
of the allegations made by the respondent in his petition ot the
c counter-allegations made :against him in the written statement
filed ;ty the appeltant Suffice it to note that on the basis of the
evidences adduced before it, the Family Court in its judgment
dated October 29, 2005 arrived at findings against the
respondent on both the issues of desertion and cruelty.
Invoking, however, the provision of section 23A ()f the Act, it
D directed the appellant to resume cohabitation with her husband,
the respondent, within 3 months from the date of the judgment.
The operative order of the Family Court is as follows:

"In the ultimate analysis, while rejeGtlng the prayer of the
E petitioner seeking for grant of dissolution of his marriage
with the respondent by a decree of divorce, I pass a
decree of restitution of the conjugal life of the parties.
Accordingly, the respondent-wife is directed to restitute
her conjugal life with the petitioner-husband within 3
F months, hence on the event of the respondent coming to
the fold of the petitioner to restitute her conjugal life with
the latter, he shall co-operate with the former and that
consequent upon success of the restitution of conjugal life
between the parties, the impact/gravity of the criminal
G. proceeding u/s. 498A IPC started against the petitioner
and his family members at the instance of the respondent
shall be loosen"

4. Against the judgment and order pa$sed by the Family
Court, the respondent preferred appeal (MAIA Nb.59 of 2005)
H
·SANJEElf:A DAS v. TAP.A:N ·Kl:fM:AIR ~tvK:i~'.AJ.;jfy '1;037
[AFTAB ALA'M, .J.]
before the Galeutta High Gourt. f.tw appeal was !disposeel o'f IA
by 3 division bench of the High Court b.y -Order 'Oatea
:September 2, 20(:)9. From that order 1t iippears that :the
res·~ndent filed ah affidavit befO're the coon: declahn@ his
willingness to ~ya sum ofRs.10,'0b,OOO.OO (rupees ten lakhs
only) as me term maintenance of the appellant and fo'r the re
expe'A'ses of •rna'rria'ge of their daughter Kumari Ayushi Mohanfy
(Richi), ,in consideration of the dissolution of his marriage wiflli
the appellant by a decree of divorce and compounding of a
criminal case instituted against him by the appellant. The
respondent further stated in the affidavit that he would pay the e
sum of Rs.5,00,000.00 (rupees five lakhs only) within 4 months
from the date of passing of the decree of divorce ahd the
balance amount of Rs.5,0b,ooo.oo (rupees five ·lakhs Only) in
4 equal installments spread over a period of e years from the
date of the passing of the decree of divorce. The High Cc'J'urt ~
in its order dated September 2, 2009 simply paraphrasea the
statements made in the affidavit filed by the respondent ana
made lt the order of the court. The order _dated Sept~r:!lber_2~
2009 was later modified by order dated November 20, 2009
to the further advantage of the respondent. ft was clarified that E
the payment of Rs.10,00,000.00 (rupees teh fal<hs only) was
not only for the lifetime maintenance of the appellant but also
for the maintenance of the daughter, Kuman Ayushi Moharity
(Richi) till she got married besides the e~penses that might be
incurred for her marriage.
F
5. These two orders passed by the High Court, b'y which
it purported to grant a decree of divorce for dissolution of the
respondent's marriage with the appellant are how before us in
appeal and piainly speaking we are unable to put any meaning
to the order of the High Court. The marriage between the G
respondent and the appeliaht was admitteafy solemnized in
accordance with the Hindu religious rites. A Hindu marriage
can be dissofvetl only on any of the gfounds plainly and Clearly
enumerated under section 13 of the Hindu Marriage Act. The
law does not permit the purchase of a decree of divorce fof Fl
1038 SUPREME COURT REPORTS [2010] 11 S.C.R.

A consideration, with or without the consent of the other side.

6. Leaned counsel appearing for the respondent urged
us not to interfere in the matter submitting that the respondent
and the appellant had lived together barely for four months. He
stated ~hat the marriage had taken place on April 29, 1994
8
and from August 24, 1994 they are living separately. He also
tried to 'argue that the order of the High Court was passed with
the consent of the parties and for that reason also this Court
should not interfere in. the matter. We are not prepared to
acceptthe submission for amoment. First, there is nothing to
C indicate that the order was passed with the consent of the
appellant. All that is said in the order is as under:

"On consideration of such affidavit and the submission of
the learned counsel appearing for the parties, we dispose
D both these appeals with the following directions"

(Emphasis added)

7. The affidavit referred to in the order is the one filed by
the respondent and consideration of submission of counsel
E for the parties does not indicate that the appellant had given
her consent for dissolution of her marriage with the respondent
on payment of Rs.10,00,000.00 (rupees ten lakhs only).
Secondly, and more importantly, the consent of the parties is
of no relevance in the matter. No court can assume jurisdiction
F to dissolve a Hindu marriage simply on the basis of the consent
of the parties de hors the grounds enumerated under section
13 of the Act, unless of course the consenting parties proceed
under section 138 of the Act.

G 8. In the light of the discussions made above, we find the
order of the High Court completely unsustainable. It is set aside
and the appeal against the judgment and order passed by the
Family Court is restored to its file. The High Court must now
hear and dispose of the appeal along with the connected
H appeal afresh, in accordance with law. Since the matter is
SANJEETA DAS v. TAPAN KUMAR MOHANTY 1039
[AFTA8 ALAM, J.]
somewhat old, the High Court may give the appeals some A
priority and dispose them of at an early date.

9. In the result, the appeals are allowed with costs,
quantified at Rs.15,000.00 (rupees fifteen thousand only).

8.8.8 Appeals allowed. 8