Smruti Pahariya Vs.
Sanjay Pahariya [2009] INSC 1027 (11 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3465 OF 2009 (@ SPECIAL
LEAVE PETITION (CIVIL) NO. 17402 OF 2008) Smruti Pahariya .....Appellant(s) -
Versus - Sanjay Pahariya ....Respondent(s)
GANGULY, J.
1.
Leave
granted.
2.
The
wife, who is the appellant before this Court, filed this appeal seeking to
impugn the judgment and order dated 5.6.2008 passed by the High Court of
judicature at 1 Bombay, which in a detailed judgment, was pleased to set aside
the judgment and decree dated 5.12.2007 passed by the Family Court, Mumbai, in
which the Family Court, dissolved the marriage between the appellant and the
respondent by a decree of divorce on mutual consent under Section 13B of the Hindu
Marriage Act, 1955 (hereinafter "the said Act").
3.
Admittedly,
the parties are Hindu and governed by the provisions of the said Act and they
were married on 5.3.1993 at Mumbai following the Hindu Vedic rites.
Marriage was also
registered. After marriage, the parties resided together in Flat No. 601, 2nd
Floor, Dinath Court, Sir Pochkhanwala Road, Worli, Mumbai. Two sons were born
to them, one on 1.2.1995 and the other one on 3.4.1997. A few years after that,
serious differences and incompatibility surfaced between them and all attempts
of settlement failed. The parties stopped living together from January 2005 and
decided to file a petition seeking divorce by mutual consent under Section 13B
of the said Act. A joint petition to that effect was filed before the Family
Court at Bandra, Mumbai and the same was registered on 19.5.2007.
It was averred
therein that incompatibility with each other made it difficult for them to
co-exist and they stopped cohabiting as husband and wife from January 2005
(para 6). In paragraph 13, it was stated that there was no collusion between
the parties in filing the petition for divorce by mutual consent and in
paragraph 17 it was pointed out that there is no force or coercion between the
parties in filing the petition. Along with the said petition, certain consent
terms were also filed but with those terms we are not concerned in this
proceeding.
4.
Under
the provisions of Section 13B (2) of the said Act, a minimum period of six
month has to elapse before such petition can be taken up for hearing. In the
instant case, the said period expired on or about 19.11.2007. In between, two
dates were given, namely, 14.6.2007 and 23.8.2007 when the parties were given a
chance for counselling but on both the days parties were absent and no
counselling took place.
5.
On
19.11.2007, after the mandatory period of six months, the matter came up before
the Family Court. It appears from the affidavit filed by the wife in this
proceeding before the Bombay High Court that on 3.11.2007, advocate of the
parties informed the husband that the matter will be listed on 19.11.2007 and a
draft affidavit of deposition was sent to him 4 through E-mail. It is not in
dispute that both the parties had the same advocate.
It also appears from
the affidavit of the wife that on 18.11.2007 the advocate received a text SMS
in his mobile from the respondent-husband that he is unable to attend the court
on 19.11.2007.
Therefore, on
19.11.2007, when the matter appeared for the first time before the Court, the
husband was absent and the Family Court asked the advocate to inform the
husband of the next date of hearing of the matter, which was fixed on
1.12.2007.
6.
On
19.11.2007 itself, an application was made by the wife to summon the husband
directing him to be present in the Family court on the next date. Accordingly,
summons were sent by the Court on 23.11.2007 by courier and the courier
returned with the remark "not accepting".
In this connection,
the order which was passed by the Family Court, on 1.12.2007, 5 on perusal of
the service report is of some importance. The following order was passed on the
service return:
"Perused the
first summons and subsequent orders thereto. I have seen service affidavit
also, states that servant was present. Hence I am not able to accept it as a
proper one. The courier endorsement is also vague. Considering the contents in
affidavit, I allow petitioner No.1 to serve the notice by pasting on the
address given in cause title to petitioner No.2. EPSB allowed.
It is made returnable
on 4.12.2007."
7.
The
petition was thus made returnable on 4.12.2007. It appears that the bailiff
pasted the summons on 3.12.2007 outside the door of the husband's residence and
the matter came up before the Family Court on 4.12.2007 and on that day the
husband was absent. The Family Court adjourned the matter to 10.12.2007. But on
5.12.2007, the wife, filed a petition before the Family Court with a prayer
that the hearing of the matter may be pre-poned 6 and be taken up on the very
same day i.e. 5.12.2007. On the aforesaid prayer of the wife, though the matter
was not on the board, it was taken on the board by the Family Court on
5.12.2007 and the decree of divorce was passed ex-parte on that date itself.
8.
It
may be mentioned in this connection that the Family Court pre-poned the hearing
on wife's application and in the absence of the husband. Admittedly, the
pre-ponement was done ex-parte.
9.
In
the background of these facts, basically four questions fall for our consideration:
I. Whether impugned
decree of divorce passed by the Family Court on 5.12.2007 is vitiated by
procedural irregularity? II. Whether by conducting the proceeding, in the
manner it did, the Family Court acted contrary to the avowed object of the
Family Courts Act, 1984? III. Whether from the absence of the husband before
the Family Court on 19.11.2007, 1.12.2007 and 4.12.2007 it can be inferred that
his consent for grant of divorce on a petition on mutual consent subsists, even
though he has not withdrawn the petition for divorce on mutual consent? IV.
Whether on a proper construction of Section 13B (2) of the said Act, which
speaks of `the motion of both the parties', this Court can hold that the Family
Court can dissolve a marriage and grant a decree of divorce in the absence of
one of the parties and without actually ascertaining the consent of that 8
party who filed the petition for divorce on mutual consent jointly with the
other party?
10.
This
fourth question assumes general importance since it turns on the interpretation
of the section. Apart from that, this question is relevant here in view of
various recitals in the judgment and decree of the learned Judge of the Family
Court. It appears that the Family Court granted the decree of divorce by
proceeding on the presumption of continuing consent of the husband.
11.
While
dealing with the first question about procedural irregularity in the matter,
this Court finds that the Family Court did not act properly even if it is held
that it was correct in presuming the continuing consent of the respondent-
husband.
12.
From
the sequence of events, it appears that on 19.11.2007 when the matter came up
before the Court, the first day after the mandatory period of six months, the
husband was absent. The Court directed service of summons on the husband on the
request of the wife. The service return was before the Court on 1.12.2007.
Looking at the
service return, the Court found that service was not a proper one and the Court
was also not satisfied with the endorsement of the courier. Under such
circumstances, the Court's direction on the prayer of the appellant-wife, for
substituted service under Order 5 Rule 20 of the Civil Procedure Code is not a
proper one. Direction for substituted service under Order 5 Rule 20 can be
passed only when Court is satisfied "that there is reason to believe that
the defendant is keeping out of the way for the purpose of evading service, or
that 10 for any other reason the summons cannot be served in the ordinary
way".
13.
In
the facts of this case, the Court did not, and rather could not, have any such
satisfaction as the Court found that the service was not proper. If the service
is not proper, the Court should have directed another service in the normal
manner and should not have accepted the plea of the appellant-wife for
effecting substituted service. From wife's affidavit asking for substituted
service, it is clear that the servant of the respondent-husband intimated her
advocate's clerk that respondent-husband was out of Bombay and will be away for
about two weeks.
However, the appellant-wife
asserted that the respondent-husband was in town and was evading. But the Court
on seeing the service return did not come to the conclusion that the husband
was evading 11 service. Therefore, the Court cannot, in absence of its own
satisfaction that the husband is evading service, direct substituted service
under Order 5 Rule 20 of the Code.
14.
Apart
from the aforesaid irregularity, the Court, after ordering substituted service
and perusing service return on 4.12.2007, fixed the matter for 10.12.2007.
Then, on the application of the wife on 5.12.2007, pre-poned the proceeding to
5.12.2007 and on that very day granted the decree of divorce even though the
matter was not on the list.
15.
This
Court strongly disapproves of the aforesaid manner in which the proceeding was
conducted in this case. A Court's proceeding must have a sanctity and fairness.
It cannot be conducted for the convenience of one party alone. In any 12
event, when the Court fixed the matter for 10.12.2007, it could not pre-pone
the matter on an ex-parte prayer made by the appellant-wife on 5.12.2007 and
grant the decree of divorce on that day itself by treating the matter on the
board in the absence of the husband. This, in our opinion, is a flagrant abuse
of the judicial process and on this ground alone, the decree dated 5.12.2007
has to be set aside.
16.
On
this aspect, this Court endorses the dissatisfaction expressed by the Bombay
High Court in paragraph 34 of its judgment under appeal about the manner in
which the date of final hearing was pre-poned and an ex-parte decree was
passed.
17.
While
dealing with the second question it appears that the Family Court has not acted
in a manner which is required of it 13 having regard to the jurisdiction
vested on it under the Family Courts Act.
18.
The
Family Courts Act, 1984 (hereinafter, Act 66 of 1984) was enacted for adopting
a human approach to the settlement of family disputes and achieving socially
desirable results. The need for such a law was felt as early as in 1974 and Chief
Justice P.B. Gajendragadhkar, as the Chairman of Law Commission, in the 59th
report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954, opined:-
"In our Report on the Code of Civil Procedure, we have had occasion to
emphasis that in dealing with disputes concerning the family, the court ought
to adopt a human approach - an approach radically different from that adopted
in ordinary civil proceedings, and that the court should make reasonable
efforts at settlement before commencement of the trial. In our view, it is
essential that such an approach should be adopted in dealing with matrimonial
disputes. We would suggest that in due course, States should think of
establishing family courts, with presiding officers who will be well qualified
in law, no doubt, but who will be trained to deal with such dispute in a 14
human way, and to such courts all disputes concerning the family should be
referred."
19.
Almost
10 years thereafter when the said Act 66 of 1984 was enacted, the words of the
Chief Justice were virtually quoted in its statement of objects and reasons.
Consistent with the
said human approach which is expected to be taken by a Family Court Judge,
Section 9 of the Act casts a duty upon the Family Court Judge to assist and
persuade the parties to come to a settlement.
20.
In
the instant case by responding to the illegal and unjust demand of the wife of
pre-poning the proceeding ex-parte and granting an ex-parte decree of divorce,
the Family Court did not discharge its statutory obligation under Section 13B
(2) of the said Act of hearing the parties.
When a proceeding is
pre-poned in the absence of a party and a final order is passed immediately,
the statutory duty cast on the Court to hear the party, who is absent, is not
discharged. Therefore, the Family Court has not at all shown a human and a
radically different approach which it is expected to have while dealing with
cases of divorce on mutual consent.
21.
Marriage
is an institution of great social relevance and with social changes, this
institution has also changed correspondingly. However, the institution of
marriage is subject to human frailty and error. Marriage is certainly not a
mere "reciprocal possession" of the sexual organs as was
philosophized by I. Kant [The Philosophy of Law page 110, W. Hastie translation
1887] nor can it be romanticized as a relationship which Tennyson fancied as
"made in Heaven"
[Alymer's Field, in
Complete Works 191, 193 (1878)].
22.
In
many cases, marriages simply fail for no fault of the parties but as a result
of discord and disharmony between them. In such situations, putting an end to
this relationship is the only way out of this social bondage. But
unfortunately, initially the marriage laws in every country were `fault
oriented'. Under such laws marriage can be dissolved only by a Court's decree
within certain limited grounds which are to be proved in an adversarial
proceeding. Such `fault' oriented divorce laws have been criticized as
`obsolete, unrealistic, discriminatory and sometimes immoral' (Foster, Divorce
Law Reform; the choices before State page 112).
23.
As
early as in 1920 possibly for the first time in New Zealand, Section 4 of the
Divorce and Matrimonial Causes Amendment Act, 1920 gave the Court the
discretion to grant a decree of divorce to parties when they had separated for
three years under a decree of judicial separation or separation order by the
Magistrate or under a deed of separation or "even by mutual consent".
Till such amendment, divorce after separation by parties on "mutual
consent" was unknown.
24.
Considering
the said amendment of 1920 and exercising the discretion the amended law
conferred on the Judge, Justice Salmond in Reports, 876], came to the
conclusion that it is not necessary to enquire into the merits of the disputes
between the parties since the man and the wife had put an end to their
relationship 13 years ago and the learned Judge found that their alienation is
"permanent and irredeemable". The learned Judge also felt that in the
18 circumstances of the case "no public or private interest is to be
served by the further continuance of the marriage bond"
and a decree for its
dissolution was passed. (See page 881).
25.
This
seems to be the first decision of a Court granting divorce on a `no-fault' basis
and because of the fact that a marriage had broken down for all practical
purposes as parties were staying separately for a very long time.
26.
The
British society was very conservative as not to accept divorce on such a ground
but in 1943, Viscount Simon, Lord Blunt, [1943, 2 All ER 76], speaking for the
House of Lords, while categorizing the heads of discretion which should weigh
with the courts in granting the decree of divorce, summed up four categories
but at 19 page 78 of the Report, the Lord Chancellor added a fifth one and the
views of His Lordship were expressed in such matchless words as they deserve to
be extracted herein below:- "To these four considerations I would add a
fifth of a more general character, which must indeed be regarded as of primary
importance, viz., the interest of the community at large, to be judged by
maintaining a true balance between respect for the binding sanctity of marriage
and the social considerations which make it contrary to public policy to insist
on the maintenance of a union which has utterly broken down. It is noteworthy
that in recent years this last consideration has operated to induce the court
to exercise a favourable discretion in many instances where in an earlier time
a decree would certainly have been refused".
27.
In
India also, prior to the amendment in our laws by insertion of Section 13B in
the said Act, the Courts felt the necessity for an amendment in the divorce
law. The Full Bench of the Delhi High 20 Gopal Dass - ILR (1971) 1 Delhi 6,
felt the inadequacy of the existing divorce law. Chief Justice Khanna (as His
Lordship then was) speaking for the Full Bench came to the following
conclusion:- "...It would not be a practical and realistic approach,
indeed it would be unreasonable and inhuman, to compel the parties to keep up
the fagade of marriage even though the rift between them is complete and there
are no prospects of their ever living together as husband and wife." [See
page 12].
28.
In
coming to the aforesaid conclusion, the learned Chief Justice relied on the
observation of the Viscount Simon, Lord (Supra).
29.
Within
a year thereafter, Hon'ble Justice Krishna Iyer, in the case of Aboobacker
while dealing with Mohammedan Law relating to divorce correctly traced the
modern trend in legal system on the principle of breakdown of marriage in the
following words:- "When an intolerable situation has been reached, the
partners living separate and apart for a substantial time, an inference may be
drawn that the marriage has broken down in fact and so should be ended by law.
This trend in the field of matrimonial law is manifesting itself in the
Commonwealth countries these days."(See page 668)
30.
In
coming to the said finding the learned Judge relied on the principles laid down
(supra).
31.
After
the said amendment in 1976 by way of insertion of Section 13B in the said Act
in the 74th Report of the Law Commission of India ( April, 1978), Justice H.R.
Khanna, as its Chairman, expressed the following views on the newly amended
Section 13B:
22 "Marriage is
viewed in a number of countries as a contractual relationship between freely
consenting individuals.
A modified version of
the basis of consent is to be found in the theory of divorce by mutual consent.
The basis in this
case is also consent, but the revocation of the relationship itself must be
consensual, as was the original formation of the relationship. The Hindu
Marriage Act, as amended in 1976, recognizes this theory in section 13B."
32.
On
the question of how to ascertain continuing consent in a proceeding under
Section 13B of the said Act, the decision 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 - AIR 1988 P & H 27: (1987) 2 HLR 184: (1987) 92 Punj LR 321] and
Rajasthan High Court [Santosh Kumari v. Virendra Kumar - AIR 1986 Raj 24 128:
(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 26 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 27 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 - (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 paragraph 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 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 30 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 Shreshta 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.
51.
It
is nobody's case that a long period has elapsed between the expiry of period of
six months and the date of final decree.
52.
For
the reasons aforesaid, we affirm the view taken by the learned Judges of the
Bombay High Court in the order under appeal.
53.
The
appeal is disposed of as follows:- (i) On receipt of the copy of this judgment,
the Family Court is directed to issue notice to both the parties to appear in
the Court on a particular day for taking further steps in the case.
(ii) On that day, the
parties are at liberty to engage their own counsel and they may be personally
present before the Court and inform the Court as to whether they have consent
to the passing of the decree under Section 13B of the Act. If both the parties
give their consent for passing of the decree under Section 34 13B, the Court
may pass appropriate orders.
(iii) If any of the
parties makes a representation that he/she does not have consent to the passing
of the decree, the Court may dispose of the proceedings in the light of the
observations made by us.
There shall be no
order as to costs.
...................C.J.I.
(K.G. BALAKRISHNAN)
.......................J.
(P. SATHASIVAM)
.......................J.
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