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No divorce if spouse withdraws consent: SC

Last updated on: April 28, 2011 20:28 IST

Divorce cannot be granted to a Hindu couple if either of the spouse withdraws the consent before the judicial decree is passed, the Supreme Court has ruled.

A bench of justices D K Jain and H L Dattu said that the most important requirement for grant of a divorce by mutual consent is free consent of both the parties.

"In other words, unless there is a complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent," Justice Dattu said writing the judgement.

The apex court passed the judgement while dismissing the appeal filed by Hitesh Bhatnagar challenging the refusal of the matrimonial court and the Punjab and Haryana  High Court to grant his plea for divorce by mutual consent after the wife expressed the desire to continue the matrimonial relationship.

In the present case, Hitesh Bhatnagar and Deepa Bhatnagar had in 2001 filed a petition under Section 13B of the Hindu Marriage Act, 1955, before the district court in Gurgaon for dissolution of the marriage by grant of a decree of divorce by mutual consent.

However, before passing of the decree of divorce, the wife withdrew the consent on the ground she wanted to live with her husband in the interest of their only daughter, after

which the trial court dismissed the petition.

Aggrieved, the husband appealed in the Punjab and Haryana High Court which dimissed his appeal on November 8, 2006, following which he moved the apex court.

The apex court pointed out that the wife wanted the marriage to continue for the sake of their daughter whereas the husband was determined to seek a divorce.

"Even now, she states that she is willing to live with her husband putting away all the bitterness that has existed between the parties. In the light of these facts and circumstances, it would be a travesty of justice to dissolve this marriage as having broken down.

"Though there is bitterness amongst the parties and they have not even lived as husband and wife for the past about 11 years, we hope that they will give this union another  chance, if not for themselves, for the future of their daughter," Justice Dattu said.

The apex court concluded the judgement with the following quote of English novelist George Eliot "what greater thing is there for two human souls than to feel that they are joined for life- to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting."

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