In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083, this Court held that conjugal rights are not merely creature of statute but inherent in the very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be “much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire”. The court should not give up the effort of reconciliation merely on the ground that there is No. chance for reconciliation or one party or the other says that there is No. possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage.
In Smt. Sureshta Devi v. Om Prakash AIR 1992 SC 1304, this Court held that mere filing the petition for divorce by mutual consent does not authorise the court to make a decree for divorce. The interregnum waiting period from 6 to 18 months is 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 second thought and change the mind not to proceed with the petition. The court must be satisfied about the bona fides and the consent of the parties for the reason that court gets jurisdiction to make a decree for divorce only on mutual consent at the time of enquiry. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. Thus, withdrawal of consent can be unilateral prior to second motion. The Court further observed:
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 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 under the same roof by force of circumstances, and yet they may not be living as husband and wife. The. parties may be living in different houses and yet they could live as husband and wife. What seems to be necesssary 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 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 dissolved.
(Emphasis added)
For grant of divorce in such a case, the Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. (Vide: Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637).
