IN THE  SUPR E M E  CO U R T  OF  INDIA

CIVIL  APPELLAT E  JURISDICTION

CIVIL APPEAL NO.5952 OF 2009 (@ SPECIAL LEAVE PETITION (CIVIL)NO.14361 OF 2007)

Anil Kumar Jain  … Appellant  Vs.

Maya Jain      …  Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The  short  point  for  decision  in  this  appeal  is  

whether a decree can be passed on a petition for mutual  

divorce  under  Section  13-B  of  the  Hindu  Marriage  Act,  

1955, when one of the petitioners withdraws consent to  

such decree prior to the passing of such decree.   

3. In  the  instant  case,  the  appellant  husband  was  

married  to  the  respondent  wife  on  22nd June,  1985,  

according  to  Hindu  rites.  On  account  of  differences  

between them, they took a decision to obtain a decree of

mutual divorce, which resulted in the filing of a joint  

petition  for  divorce  under  Section  13-B  of  the  Hindu  

Marriage  Act,  1955,  (hereinafter  referred  to  as  ‘the  

Act’) on 4th September, 2004, in the District Court at  

Chhindwara.   The  same  was  registered  as  Civil  Suit  

No.167-A of 2004.  As required under the provisions of  

Section 13-B of the aforesaid Act, the learned Second  

Additional District Judge, Chhindwara, fixed the date for  

consideration of the petition after six months so as to  

give the parties time to reconsider their decision.  On  

7th March,  2005,  after  the  expiry  of  six  months,  the  

learned  Second  Additional  District  Judge,  Chhindwara,  

took up the matter in the presence of both the parties  

who  were  present  in  the  Court.  While  the  appellant  

husband reiterated his earlier stand that a decree of  

mutual divorce should be passed on account of the fact  

that  it  was  not  possible  for  the  parties  to  live  

together,  on  behalf  of  the  respondent  wife  it  was  

submitted  that  despite  serious  differences  which  had  

arisen between them, she did not want the marriage ties  

to be dissolved.  On account of withdrawal of consent by  

the  respondent  wife,  the  learned  Judge  dismissed  the  

joint petition under Section 13-B of the Act.    

4. Aggrieved by the order dated 17th March, 2005, passed

by  the  learned  Second  Additional  District  Judge,  

Chhindwara, the appellant filed an appeal under Section  

28 of the Act in the High Court of Madhya Pradesh at  

Jabalpur on 4th April, 2005, and the same was registered  

as First Appeal no.323 of 2005.  Even before the High  

Court, on 12th March, 2007, the respondent wife expressed  

her desire to live separately from the appellant, but she  

did not want that a decree of dissolution of marriage be  

passed.  In that view of the matter, by his order dated  

21st March, 2007, the learned Single Judge dismissed the  

First Appeal.  While dismissing the appeal, the learned  

Single Judge took note of the decision of this Court in  

similar circumstances in the case of Ashok Hurra v. Rupa  

Bipin  Zaveri [1997  (4)  SCC  226],  wherein  this  Court  

granted  a  decree  of  mutual  divorce  by  exercising  its  

extra-ordinary  powers  under  Article  142  of  the  

Constitution of India.  It was indicated that the High  

Court did not have such powers and Section 13-B required  

that the consent of the spouses on the basis of which the  

petition  under  Section  13-B  was  presented,  had  to  

continue till a decree of divorce was passed by mutual  

consent.  On that basis, the learned Single Judge of the  

High Court, while dismissing the appeal, observed that  

the appellant would be free to file a petition of divorce  

in accordance with law, which would be decided on its own

merits  by  keeping  in  mind  the  special  fact  that  the  

parties were living separately for about five years and  

the respondent wife was adamant about living apart from  

her husband.   

5. It is against the said order passed by the High Court  

rejecting  the  appellant’s  prayer  for  grant  of  mutual  

divorce that the present appeal has been filed.    

6. Appearing  on  behalf  of  the  appellant  husband,  Mr.  

Rohit Arya, learned Senior Advocate, contended that prior  

to the filing of the petition for mutual divorce, the  

parties had entered into a settlement which had been fully  

acted  upon  by  the  appellant  and  that  under  the  said  

agreement valuable property rights had been transferred to  

the respondent wife, which she was and is still enjoying.  

Mr. Arya submitted that apart from the above, the attitude  

of the respondent wife in openly declaring that she had no  

intention to remain with the appellant, was sufficient to  

indicate that the marriage had broken down irretrievably  

and in similar circumstances this Court had invoked its  

extra-ordinary  powers  under  Article  142  of  the  

Constitution to grant a decree of divorce under Section  

13-B of the Hindu Marriage Act, even though one of the  

parties had withdrawn consent before the passing of the  

final decree.  Reference was made to the decision in Ashok

Hurra’s case(supra), which also involved a petition under  

Section 13-B of the Act.   

7. However, the facts of the said case were a little  

different from those in the instant case.  In the said  

case, after six months from the date of filing of the  

petition under Section 13-B, an application was filed by  

the husband alone for a decree of divorce on the petition  

under Section 13-B of the Act.  Not only did the wife not  

join  in  the  said  application,  she  made  a  separate  

application for withdrawal of consent given by her for  

mutual divorce after the expiry of 18 months from the date  

of  presentation  of  the  divorce  petition.   At  this  

juncture,  reference  may  be  made  to  the  provisions  of  

Section 13-B of the above Act and the same is extracted  

hereinbelow :-

“13B. Divorce by mutual consent. –  (1) Subject to the 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,  1976,  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 have mutually agreed that the marriage should  be dissolved.  

(2) On the motion of both the parties made not  earlier  than  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 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  of the decree.”

As will be clear from the above, sub-Section (1) of  

Section 13-B is the enabling Section for presenting a  

petition for dissolution of a marriage by a decree of  

divorce by mutual consent.  One of the grounds provided  

is that the parties have been living separately for a  

period of one year or more and that they have not been  

able to live together, which is also the factual reality  

in the instant case.  Sub-Section (2) of Section 13-B,  

however, provides the procedural steps that are required  

to be taken once the petition for mutual divorce has been  

filed  and  six  months  have  expired  from  the  date  of  

presentation  of  the  petition  before  the  Court.   The  

language is very specific in that it intends that on a  

motion  of  both  the  parties  made  not  earlier  than  six  

months after the date of presentation of the petition  

referred  to  in  sub-Section  (1)  and  not  later  than  18  

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 thinks fit, pass a decree of divorce  

declaring the marriage to be dissolved with effect from  

the date of the decree.

 8. The question whether the consent of both the parties  

given at the time of presentation of the petition for  

mutual  divorce  under  Section  13-B  of  the  Act  must  

continue till the decree is finally passed, has been the  

subject matter of several decisions of this Court. The  

issue was raised in the case of Smt. Sureshta Devi vs. Om  

Prakash [(1991) 2 SCC 25], wherein this Court held that  

the  consent  given  by  the  parties  to  the  filing  of  a  

petition for mutual divorce had to subsist till a decree  

was passed on the petition and that in the event, either  

of the parties withdrew the consent before passing of the  

final  decree,  the  petition  under  Section  13-B  of  the  

Hindu Marriage Act would not survive and would have to be  

dismissed.

9. Subsequently, however, in Ashok Hurra’s case (supra),  

doubts were expressed by this Court with regard to certain  

observations made in Sureshta Devi’s case (supra) and it  

was felt that the same might require re-consideration in  

an appropriate case.  Basing its decision on the doctrine  

of  irretrievable  break-down  of  marriage,  the  Hon’ble  

Judges were of the view that no useful purpose would be

served  in  prolonging  the  agony  of  the  parties  to  a  

marriage which had broken down irretrievably and that the  

curtain had to be rung down at some stage.  It was further  

observed that the court had to take a total and broad view  

of the ground realities of the situation while dealing  

with adjustment of human relationships.  Their Lordships  

placed  reliance  on  the  decision  of  this  Court  in  

Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon (Capt.) &  

Anr. [(1993) 2 SCC 6], in arriving at such a conclusion.  

In the said case, although, indisputably consent for the  

petition  under  Section  13-B  of  the  Act  was  withdrawn  

within a week from the date of the filing of the joint  

petition,  the  Court,  in  exercise  of  its  powers  under  

Article  142  of  the  Constitution,  granted  a  decree  of  

divorce by mutual consent under Section 13-B of the Act  

and dissolved the marriage between the parties in order to  

meet the ends of justice, subject to certain conditions.  

It was also made clear that the decree would take effect  

only  upon  satisfaction  of  the  conditions  indicated  

therein.

10. The decision in Ashok Hurra’s case (supra) to invoke  

the  power  under  Article  142  of  the  Constitution  was,  

thereafter,  followed  in  several  cases  based  upon  the  

doctrine of irretrievable break-down of marriage.

11. In  keeping  with  the  trend  of  thought  which  found  

expression in Ashok Hurra’s case (supra) another question  

arose  before  this  Court  in  the  case  of  Sandhya  M.  

Khandelwal vs.  Manoj K. Khandelwal [(1998) 8 SCC 369],  

which had come up before this Court by way of a transfer  

petition seeking transfer of a matrimonial suit.  During  

the pendency of the transfer petition before this Court,  

the parties settled their disputes, and, although, the  

petition involved a proceeding under Section 13 of the  

Hindu Marriage Act, 1955, keeping in mind the settlement  

arrived at between the parties and also the interest of  

the parties, this Court granted a decree of divorce by  

treating the pending application as one under Section 13-B  

of the said Act.

12. The views expressed in Ashok Hurra’s case (supra) were  

echoed in Anita Sabharwal vs. Anil Sabharwal [(1997) 1 SCC  

490] and in the case of Kiran vs. Sharad Dutt [(2000) 10  

SCC 243].  In the former case decree for mutual divorce  

was granted without waiting for the statutory period of  

six months.  In the latter case, after living separately  

for many years and after 11 years of litigation involving  

proceedings under Section 13 of the Hindu Marriage Act,  

1955, the parties filed a joint application before this  

Court for amending the divorce petition.  Treating the

said divorce petition as one under Section 13-B of the  

Act, this Court, by invoking its powers under Article 142  

of the Constitution, granted a decree of mutual divorce at  

the SLP stage.

13. Without referring to the decisions rendered by this  

Court in  Ashok Hurra’s case (supra) and in  Kiran’s case  

(supra), a three Judge Bench of this Court in the case of  

Anjana Kishore vs.  Puneet Kishore [(2002) 10 SCC 194],  

while  hearing  a  transfer  petition,  invoked  its  

jurisdiction under Article 142 of the Constitution, and  

directed the parties to file a joint petition before the  

Family Court at Bandra, Mumbai, under Section 13-B of the  

Hindu Marriage Act, 1955, for grant of a decree of divorce  

by mutual consent, along with  a copy of the terms of  

compromise arrived at between the parties.  This Court  

also directed that on such application being made, the  

Family Court could dispense with the need of waiting for  

six months as required by Sub-Section (2) of Section 13-B  

of the Act and pass final orders on the petition within  

such  time  as  it  deemed  fit.   This  Court  directed  the  

Presiding Judge to take appropriate steps looking to the  

facts  and  circumstances  of  the  case  emerging  from  the  

pleadings of the parties and to do complete justice in the  

case.

14. Again in the case of  Swati Verma (Smt.) vs.  Rajan  

Verma & Ors. [(2004) 1 SCC 123], which was a transfer  

petition,  the  doctrine  of  irretrievable  break-down  of  

marriage was invoked.  Pursuant to a compromise arrived at  

between the parties and leave granted by this Court, an  

application  was  filed  under  Section  13-B  of  the  Hindu  

Marriage Act read with Article 142 of the Constitution and  

having regard to the aforesaid doctrine, this Court, in  

exercise of its powers vested under Article 142 of the  

Constitution,  allowed  the  application  for  divorce  by  

mutual consent filed in the said proceedings, in order to  

give  a  quietus  to  all  litigation  pending  between  the  

parties.  The same procedure was adopted by this Court in  

the case of Jimmy Sudarshan Purohit vs. Sudarshan Sharad  

Purohit [(2005)  13  SCC  410],  where  upon  a  settlement  

arrived at between the parties, a joint petition was filed  

under Section 13-B of the Hindu Marriage Act and the same  

was allowed in exercise of powers under Article 142 of the  

Constitution.

15. The  various  decisions  referred  to  above  were  

considered in some detail in the case of Sanghamitra Ghosh  

vs.  Kajal Kumar Ghosh [(2007) 2 SCC 220], and the view  

taken in the various cases was reiterated based on the  

doctrine of irretrievable break-down of marriage.

16. Although,  the  decision  rendered  in  Sureshta  Devi  

(supra) was referred to in the decision rendered in Ashok  

Hurra’s case (supra) and it was observed therein that the  

said  decision  possibly  required  reconsideration  in  an  

appropriate case, none of the other cases has dealt with  

the question which arose in Sureshta Devi’s case (supra),  

namely, whether in a proceeding under Section 13-B of the  

Hindu Marriage Act, consent of the parties was required to  

subsist till a final decree was passed on the petition.  

In all the subsequent cases, the Supreme Court invoked its  

extraordinary   powers  under  Article  142  of  the  

Constitution of India in order to do complete justice to  

the  parties  when  faced  with  a  situation  where  the  

marriage-ties  had  completely  broken  and  there  was  no  

possibility  whatsoever  of  the  spouses  coming  together  

again.  In such a situation, this Court felt that it would  

be a travesty of justice to continue with the marriage  

ties.  It may, however, be indicated that in some of the  

High Courts, which do not possess the powers vested in the  

Supreme Court under Article 142 of the Constitution, this  

question had arisen and it was held in most of the cases  

that despite the fact that the marriage had broken down  

irretrievably, the same was not a ground for granting a  

decree of divorce either under Section 13 or Section 13-B

of the Hindu Marriage Act, 1955.   

17. In  the  ultimate  analysis  the  aforesaid  discussion  

throws up two propositions. The first proposition is that  

although irretrievable break-down of marriage is not one  

of the grounds indicated whether under Sections 13 or 13-

B of the Hindu Marriage Act, 1955, for grant of divorce,  

the said doctrine can be applied to a proceeding under  

either  of  the  said  two  provisions  only  where  the  

proceedings are before the Supreme Court. In exercise of  

its  extraordinary  powers  under  Article  142  of  the  

Constitution the Supreme Court can grant relief to the  

parties without even waiting for the statutory period of  

six months stipulated in Section 13-B of the aforesaid  

Act.  This  doctrine  of  irretrievable  break-down  of  

marriage is not available even to the High Courts which  

do  not  have  powers  similar  to  those  exercised  by  the  

Supreme  Court  under  Article  142  of  the  Constitution.  

Neither the civil courts nor even the High Courts can,  

therefore,  pass  orders  before  the  periods  prescribed  

under the relevant provisions of the Act or on grounds  

not provided for in Section 13 and 13-B of the Hindu  

Marriage Act, 1955.

18. The second proposition is 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  

other Courts are not competent to pass a decree for mutual  

divorce if one of the consenting parties withdraws his/her  

consent before the decree is passed.  Under the existing  

laws, the consent given by the parties at the time of  

filing of the joint petition for divorce by mutual consent  

has to subsist till the second stage when the petition  

comes up for orders and a decree for divorce is finally  

passed  and  it  is  only  the  Supreme  Court,  which,  in  

exercise of its extraordinary powers under Article 142 of  

the Constitution, can pass orders to do complete justice  

to the parties.

19. The  various  decisions  referred  to  above  merely  

indicate  that  the  Supreme  Court   can  in  special  

circumstances pass appropriate orders to do justice to the  

parties in a given fact situation by invoking its powers  

under  Article  142  of  the  Constitution,  but  in  normal  

circumstances  the provisions of the statute have to be  

given effect to. The law as explained in  Smt. Sureshta  

Devi’s case (supra) still holds good, though with certain  

variations as far as the Supreme Court is concerned and

that too in the light of Article 142 of the Constitution.

20. In the instant case, the respondent wife has made it  

very clear that she will not live with the petitioner,  

but, on the other hand, she is also not agreeable to a  

mutual  divorce.  In  ordinary  circumstances,  the  

petitioner’s   remedy  would  lie  in  filing  a  separate  

petition before the Family Court under Section 13 of the  

Hindu Marriage Act, 1955, on the grounds available, but in  

the present case there are certain admitted facts which  

attract the provisions of Section  13-B thereof. One of  

the grounds available under Section 13-B  is that  the  

couple have been living separately for one year or more  

and that they have not been able to live together, which  

is, in fact, the case as far as the parties to these  

proceedings are concerned. In this case, the parties are  

living separately for more than seven years.  As part of  

the  agreement  between  the  parties  the  appellant  had  

transferred  valuable  property  rights  in  favour  of  the  

respondent and it was after registration of such transfer  

of property that she withdrew her consent for divorce.  

She still continues to enjoy the property and insists on  

living separately from the husband.

21. While,  therefore,  following  the  decision  in  Smt.  

Sureshta Devi’s  case we are of the view that this is a

fit case where  we may exercise the powers vested in us  

under Article 142 of the Constitution. The stand of the  

respondent wife that she wants to live separately from her  

husband but is not agreeable to a mutual divorce is not  

acceptable, since living separately is one of the grounds  

for grant of a mutual divorce and admittedly the parties  

are living separately for more than seven years.

22. The  appeal  is,  therefore,  allowed.  The  impugned  

judgment and order of the High Court is set aside and the  

petition for grant of mutual divorce under Section 13-B of  

the Hindu Marriage Act, 1955, is accepted. There will be a  

decree of divorce on the basis of the joint petition filed  

by  the  parties  before  the  Second  Additional  District  

Judge,  Chhindwara,  under  Section  13-B  of  the  Hindu  

Marriage Act, 1955, in respect of the marriage solemnized  

between the parties on 22nd June, 1985, according to Hindu  

rites  and  customs  and  the  said  marriage  shall  stand  

dissolved from the date of this judgment.

23. There will be no order as to costs.

……………………………………………J. (ALTAMAS KABIR)

……………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated: 01.09.2009.