Husband refusing final statement in mutual consent divorce case

[Anonymous]

After filing mutual consent petition the husband refused to record final statement in the court for final dissolution nor refused to back out from recording the statement. 18 months have passed .court has given another 15 days.

Pls guide us what remedy is available so that divorce is executed

[Pulkit Srivastava]

In order to answer the query, it is important to peruse Section 13-B (2) of the Hindu Marriage Act, 1955 dealing with the procedure relating to divorce by mutual consent, which stipulates as follows:

“13B. Divorce By Mutual Consent.

(1) ——–xx——- ——–xx——— ——xx——-

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

The emphasis couched in the afore-said provision clearly suggests that if the second motion is not filed within a period of 18 months from the date of filing of the first motion, the court is not bound to pass a decree of divorce by mutual consent.

Since, the most important requirement of grant of divorce by mutual consent is free consent of both the parties. Therefore, the husband and wife must be in complete agreement for dissolution of marriage and unless the court is satisfied, it cannot grant decree of divorce by mutual consent.

In this regard, the Hon’ble Supreme Court in the matter being titled as Hitesh Bhatnagar Vs. Deepa Bhatnagar, AIR 2011 SC 1637, has quoted in approval another judgment passed by it in the matter of Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, which had held as follows:

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was 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 spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. 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 13B 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.”

Since in the present circumstances, the husband has refused to record the final statement (i.e. the statement on the second motion), it clearly indicates that the husband is not willing to give his consent for divorce by mutual consent. In such an eventuality, the Court has no power to pass a decree for mutual divorce.

In light of the afore-said facts and circumstances, the best recourse available to you is first to try, if possible, to convince your husband to agree for the divorce by mutual consent and agree for the statement on second motion (because the court has given you another 15 days time). If that is not possible then, the only option left would be to withdraw the Petition and file a Petition under different grounds as enumerated under Section 13(1) of the Hindu Marriage Act, 1955, if any of those grounds are applicable in your case.

[Jochen Ziegler]

This shows me very clearly as a european that india has no proper rules and no rights for women and shows that man can do whatever they want.

Mutual consent divorce is not filed for fun. When both people have agreed in first motion that both want to get divorced, it should be like this and not playing around with the other ones life while stating in the second motion: oh, i have changed my mind because of this and that reason which is not true only to make the others life miserable.

Or when one party is not showing up in the second motion the case is getting lingered on and at the end the case is getting dismissed and the first party has to restart a divorce under section 13 again and might wait for years and years to get divorced from the one which he/she hates and will not stay at any cost.

[Author]

Posts