Existence of serious dispute between husband and wife not a prerequisite for grant of divorce by mutual consent under Hindu Marriage Act

Existence of serious dispute between husband and wife not a prerequisite for grant of divorce by mutual consent under Hindu Marriage Act

Sandhya Sen Vs Sanjay Sen

Chattisgarh HC

06/04/2021

FAM No. 153 of 2019

About/from the judgment:

The High Court has observed that existence of a serious dispute between a husband and wife is not a prerequisite for grant of divorce by mutual consent under sec, 13B of the Hindu Marriage Act, 1955. While observing so, the Court also opined that a judicial separation, instead of divorce by mutual consent cannot be granted in a mechanical manner.

A Court observed thus:

"The provisions contained in Section 13-B of the Act, 1955 does not provide for existence of a ground like the ones contained in Section 13 for grant of divorce by mutual consent. There need not be a serious dispute between a married couple for seeking a divorce by mutual consent. It may happen in a given case that there is no quarrel or dispute between the couple but yet their actions and behaviour are not compatible with each other for living a happy and peaceful married life, therefore, they may seek divorce by mutual consent."

The observation came in an appeal challenging a decree of judicial separation passed by the Trial Court vide judgment dated 12th December 2018 in the proceedings for grant of divorce by mutual consent under sec. 13B of the Act.

The parties, married since February 2017, remained together for only two days and had preferred a joint application for divorce by mutual consent after one year of marriage i.e. in March 2018.

The Trial Court had passed a decree for judicial separation for a period of one year instead of divorce by mutual consent by referring to sec. 13A of the Act which provides for alternative relief in divorce proceedings. While passing the said decree, the trial court also went ahead to observe that the period of their staying together is so short that it is not possible that any serious dispute would have arisen between them.

The High Court, while analyzing the said provision, observed that sec. 13A would attract only in those cases where the Trial Court is satisfied that it is just to pass a decree for judicial separation instead of mutual divorce.

"The phrase "having regard to the circumstances of the case" requires the trial Court to find out the circumstances which compels it to pass a decree for judicial separation. Unless such circumstances exist, the trial Court is not entitled to pass a decree for judicial separation in a mechanical manner." The Court observed at the outset.

The Court also observed that the "Trial Court had assumed that the dispute between the parties might not be of such intensity which could force them to seek a divorce by mutual consent."

Observing that occurrence of serious dispute is not a prerequisite under sec. 13B, the Court held thus:

"If an application is otherwise duly constituted and properly presented before the Court, it is not for the Court to search for a ground or a reason, which has compelled the parties to seek divorce by mutual consent."

In view of the aforesaid observations, the Court observed that the Trial Court should have passed the decree of divorce by mutual consent instead of decree for judicial separation.

"Therefore, we allow the appeal, set-aside the impugned decree of judicial separation and instead pass a decree of divorce by mutual consent. Accordingly, the marriage between the parties solemnized on 20.2.2017 is dissolved by a decree of divorce by mutual consent. A decree be drawn accordingly." The Court held.

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