Family Law

Sureshta Devi v. Om Prakash

AIR 1992 SC 1904; (1991) 2 SCC 25

Facts

Sureshta Devi and Om Prakash married in 1968.
They lived together only for about six or seven months and thereafter remained separate.
They jointly filed a petition under Section 13B(1) HMA seeking divorce by mutual consent.
Their statements were recorded by the District Court.
Before the final decree, the wife filed an application withdrawing her consent.
She alleged that:
she was no longer willing to dissolve the marriage; and
her original consent had been obtained under pressure from the husband.
The District Judge dismissed the mutual-consent petition because continuing consent was absent.
The High Court reversed the decision.
It held that once free consent had been given at the time of the first petition, one spouse could not unilaterally withdraw it.
The wife appealed to the Supreme Court.

Whether either spouse may withdraw consent after filing the first-motion petition but before the divorce decree.
Whether mutual consent must continue until the final decree is passed.

Section 13B creates a two-stage procedure:
a joint petition under Section 13B(1); and
a later joint motion under Section 13B(2).
Filing the first petition does not itself dissolve the marriage.
Mutual consent is the very foundation of jurisdiction under Section 13B.
Consent must exist:
when the first petition is presented;
when the second motion is made; and
when the court passes the decree.
Either spouse may withdraw consent before the final decree.
The cooling-off interval allows the parties to:
reconsider;
obtain advice;
explore reconciliation; and
decide whether they still wish to end the marriage.
The expression “living separately” does not necessarily mean residing in different locations; it means not living together as spouses or performing normal marital obligations.

The Court focused on the words “on the motion of both the parties” in Section 13B(2).
A second motion cannot be made by only one spouse.
If consent given at the first stage were irrevocable, the second-motion requirement would become meaningless.
The statutory period was deliberately inserted to provide time for reconsideration.
It would defeat that purpose if a spouse remained permanently bound by the first statement.
The court also has to satisfy itself at the final stage that mutual consent is genuine and continuing.
Absence of force, fraud or undue influence at the first stage does not eliminate the need for present consent.
Even a person who initially consented freely may later genuinely reconsider.
Once the wife withdrew her consent, the necessary joint intention ceased to exist.
The husband could not obtain divorce merely by proving the original agreement.
Section 13B is based on continuing consensus, not on enforcement of a past contractual promise.
A matrimonial court cannot compel a person to continue consenting to divorce.
Since both parties no longer jointly sought dissolution, the court lacked jurisdiction to pass a mutual-consent decree.

The Supreme Court allowed the wife’s appeal.
Either party may withdraw consent at any time before the divorce decree.
Mutual consent must continue until the decree is actually passed.
The High Court’s decree of divorce was set aside.
Use this case for: consent under Section 13B is revocable and must exist at both motions and at the time of decree.