SC: Marriage to be dissolved in presence of both spouses

SC: Marriage to be dissolved in presence of both spouses
6/19/2009
The Supreme Court has ruled that a court does not have jurisdiction to dissolve a marriage by mutual consent under Section 13B of the Hindu Marriage Act, unless and until both the spouses are present in the court and give their consent for dissolution of marriage at the time of granting divorce.

A three-judge bench comprising Chief Jusice K G Balakrishnan and Justices P Sathasivam and Asok Kumar Ganguly allowed the appeal of Smruti Pahariya, the wife, who had challenged a Bombay High Court order dated June 5, 2008 which had set aside the order of the Family Court, Mumbai that had granted divorce on December 5, 2007 to the estranged couple without either of them being present in the court.

Justice Ganguly, speaking for the bench in a 31-page judgment, noted, ' In our view, it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13B..

So in cases under the said Section , mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13 B would be slow and circumspect before it can infer the existence of such jurisdictional fact,' he added.

The court has to be satisfied about the existence of mutual consent between the parties on some tangible material which demonstrably discloses such consent.

' We are of the view that it is only with the continued mutual consent of the parties that decree for divorce under Section 13B of the said Act can be passed by the court.' If petition for divorce is not formally withdrawn, and is kept pending, then on the date when the court grants the decree , the court has a statutory obligation to hear the parties to ascertain their consent.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 or three days, the court can not presume his/her consent as has been done by the learned Family Court judge in the instant case,' he added.

Smruti and Sanjay were married on March 5, 1993 in Mumbai according to the Hindu rites and were blessed with two sons.

However, strains developed between both of them, which led to their separation in January 2005. The parties then decided to seek divorce by mutual consent to end the relationship which had become an unbearable burden for them..

The apex court directed the Family Court to issue notice to both the parties to appear in person before the court on a particular day and seek their consent.

In case, however, either of the parties refuse to give consent for divorce, the court may dispose of the proceedings in the light of the observations made by the apex court. If the parties agree for divorce by mutual consent, the court may pass an appropriate order.