Supreme Court in the case of Smt. Sureshta Devi v. Om Prakash (1991) 2 SCC 25, gives considerable guidance.
33. In Paragraph 8 of the said judgment, this Court summed up the requirement of Section 13B (1) as follows :
“8. There are three other requirements in sub-section (1). They are :
(i) They have been living separately for a period of one year.
(ii) They have not been able to live together, and
(iii) They have mutually agreed that marriage should be dissolved.”
34. In paragraph 10, the learned Judges dealt with sub-section (2) of Section 13B. In paragraphs 11 and 12, the learned Judges recorded the divergent views of the Bombay High Court (Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe AIR 1982 Bom 302 : 86 Bom LR 184), Delhi High Court (Chander Kanta v. Hans Kumar AIR 1989 Del 73), Madhya Pradesh High Court (Meena Dutta v. Anirudh Dutta (1984) 2 DMC 388 (MP)), and the views of the Kerala High Court (K.I. Mohanan v. Jeejabai AIR 1988 Ker 28 : (1986) 2 HLR 467: 1986 KLT 990), Punjab and Haryana High Court (Harcharan Kaur v. Nachhattar Singh, (1987) 2 HLR 184, and Rajasthan High Court (Santosh Kumari v. Virendra Kumar, (1986) 1 HLR 620 : 1986 Raj LR 441) respectively on Section 13B.
35. In paragraphs 13 and 14 of the Sureshta Devi (supra), the learned Judges gave an interpretation to Section 13B(2) and in doing so the learned Judges made it clear that the reasons given by the High Court of Bombay and Delhi are untenable inasmuch as both the High Courts held that once the consent is given by the parties at the time of filing the petition, it is impossible for them to withdraw the same to nullify the petition.
36. We also find that the interpretation given by Delhi and Bombay High Courts is contrary to the very wording of Section 13B(2) which recognizes the possibility of withdrawing the petition filed on consent during the time when such petition has to be kept pending.
37. In paragraph 13 of Sureshta Devi (supra), the learned Judges made the position clear by holding as follows :
“At the time of the petition by mutual consent, the parties are not unaware that 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-B 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 It provides that “on the motion of both the parties…..if the petition is not withdrawn in the meantime, the court shall….pass a decree of divorce…”.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 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 no jurisdiction to make a decree for divorce. If the view is 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.”
38. Therefore, it was made clear in Sureshta Devi (supra) that under Section 13B(2), the requirement is the ‘motion of both the parties’ and interpreting the same, the learned Judges made it clear that there should be mutual consent when they move the Court with a request to pass a decree of divorce and there should be consent also at the time when the Court is called upon to make an enquiry, if the petition is not withdrawn and then pass the final decree.
39. Interpreting the said Section, it was held in Sureshta Devi (supra) that if the petition is not withdrawn in the meantime, the Court, at the time of making the enquiry, does not have any jurisdiction to pass a decree, unless there is mutual consent.
40. Learned Judges made it further clear that if the Court makes an enquiry and passes 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 a decree by mutual consent.
41. In paragraph 14 of the said judgment, learned Judges made it further clear as follows :
“If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard.” (See (i) Halsbury’s Laws of England, 4th edn. Vol. 13 para 645; (ii) Rayden on divorce, 12th edn., Vol. 1, P. 291; and (iii) Beales v. Beales).”
42. In paragraph 15 of the judgment, this Court held that the decisions of the High Courts of Bombay, Delhi and Madhya Pradesh cannot be said to have laid down the law correctly and those judgments were overruled. We also hold accordingly.
43. The decision in Sureshta Devi (supra) was rendered by a Bench of two learned Judges of this Court. In a subsequent decision of two learned Judges of this Court in the case of Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226, the judgment in Sureshta Devi (supra) was doubted as according to the learned Judges some of the observations in Sureshta Devi (supra) appear to be too wide and require reconsideration in an appropriate case.
44. Learned Judges in Ashok Hurra (supra) made it clear that they were passing the order in that case on the peculiar fact situation. This Court also held that in exercise of its jurisdiction under Article 142 of the Constitution, a decree of divorce by mutual consent under Section 13B of the Act was granted between the parties. (See paragraphs 16 and 22 of the report).
45. It appears that those observations were made by the learned Judges without considering the provisions of the Family Courts Act. In any event, the decision in Ashok Hurra (supra) was considered by a larger Bench of this Court in Rupa Ashok Hurra Vs. Ashok Hurra and Another (2002) 4 SCC 388. No doubt was expressed by the larger Bench on the principles laid down in Sureshta Devi (supra). It appears that a petition for review was filed against the two Judge decision in Ashok Hurra (supra) and the same was dismissed. Thereafter, the question before the Constitution Bench in Rupa Ashok Hurra (supra) was as follows :
“Whether the judgment of this Court dated 10.3.1997 in Civil Appeal No. 1843 of 1997 (1997) 4 SCC 226) can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be considered by a Constitution Bench of this Court.”
46. In the Constitution Bench decision of this Court in Rupa Ashok Hurra (supra), this Court did not express any view contrary to the views of this Court in Sureshta Devi (supra).
47. We endorse the views taken by this Court in Sureshta Devi (supra) as we find that on a proper construction of the provision in Section 13B(1) and 13B(2), there is no scope of doubting the views taken in Sureshta Devi (supra). In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra (supra) 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.
48. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi (supra).
49. We are of the view that it is only on 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 to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above.
50. 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 Section 13B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. In the facts of the case, the impugned decree was passed within about three weeks from the expiry of the mandatory period of six months without actually ascertaining the consent of the husband, the respondent herein. [Supreme Court in Smruti Pahariya Versus Sanjay Pahariya -AIR 2009 SC 2840 : (2009) 8 SCR 631 : JT 2009 (8) SC 146 : (2009) 7 SCALE 331]