Kiran Raj

The High Court of Orissa, in a significant judgement, set aside a decree of divorce granted under Section 13-B of the Hindu Marriage Act, 1955, by the Family Court, Balasore. The petitioner, who had withdrawn her consent prior to the decree's issuance, challenged the trial court's judgment, which dissolved the marriage on mutual consent despite her withdrawal. Justice G. Satapathy observed that mutual consent is a foundational requirement for a decree under Section 13-B, and its absence invalidates such an order.

The petitioner and the respondent were married on February 12, 2018, following caste customs. Due to marital discord, both parties filed a joint petition seeking divorce under Section 13-B of the Hindu Marriage Act. Following the mandatory conciliation proceedings, the trial court was poised to pass the decree. However, the petitioner unilaterally withdrew her consent on November 18, 2021, just four days before the judgment was delivered on November 22, 2021. Despite this, the Family Court issued the decree, prompting the petitioner to approach the High Court for redress.

During the proceedings, the petitioner’s counsel, Ms. Sailabala Jena, referred to the Supreme Court's ruling in Smt. Sureshta Devi v. Om Prakash (AIR 1992 SC 1904). In that judgment, the Court held that the continuation of mutual consent is an essential prerequisite for granting a decree under Section 13-B. The counsel argued that the trial court erred in dissolving the marriage despite the petitioner’s explicit withdrawal of consent. She submitted that the unilateral withdrawal prior to the judgment nullified the mutuality required under the statute.

Opposing this, the respondent’s counsel, Mr. Sanjay Pattanaik, contended that the petitioner’s withdrawal of consent occurred after the completion of arguments and conciliation proceedings. He maintained that the judgment was valid as it was based on a thorough evaluation of evidence and lawful submissions. The respondent further asserted that the petitioner’s actions were aimed at depriving him of his legitimate right to a mutual divorce.

The High Court noted that the petitioner’s withdrawal of consent occurred within the stipulated period, before the decree was finalized. Justice G. Satapathy referred to the Supreme Court's observation in Sureshta Devi, which stated: “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 Court also stated that unilateral withdrawal of consent is permissible at any stage prior to the issuance of the decree, underscoring that mutual consent must subsist throughout the proceedings.

The High Court held that the trial court’s decision to grant the decree was erroneous and contrary to the established legal position. It stated that the absence of mutual consent at the time of the judgment rendered the decree unsustainable in law. The judgment delivered by the Family Court was set aside, and the matter was remanded for fresh adjudication in accordance with legal principles.

The High Court directed the Family Court to expedite the case and dispose of it within six months from the date of receipt of its judgment. No costs were awarded in the writ petition.

Case Title: Doyel Dey v. The Judge, Family Court, Balasore & Another
Case Number: W.P.(C) No. 39609 of 2021
Bench Composition: Justice G. Satapathy

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