Case Comment: Smt. Sureshta Devi V. Om Parkash, 1992 AIR SC 1904

Vasu Gupta, Jindal Global Law School

INTRODUCTION

Mutual consent to divorce is an essential condition for passing a decree for divorce under section 13B of Hindu marriage act, 1955 given that ‘when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence.’1 Mutual consent is an essential requirement for the court to pass an order of divorce and the consent should continue to stay mutual till the decree of divorce is passed. If the Court is given the authority to issue a decree simply on the basis of the initial petition, the entire concept of mutuality and consent for divorce is thrown out the window. The supreme court in this case deals with the issue whether a party to a mutual consent divorce petition under section 13B of Hindu marriage act, 1955 can withdraw their consent or whether consent is irrevocable once given.

The appellant in the given case is the wife of the respondent. The couple got married on 21st November, 1968. It was said that the couple did not stay together except from a brief period of a month from 9 December, 1984 to 7 January, 1985. This brief period of a month was pursuant to a court order, but the couple did not stay or behave like a couple during that period of time. The couple registered a petition under section 13B of Hindu marriage act, 1955 for divorce by mutual consent2 in the district court at Harimpur. The district court on 9th January, 1985 recorded statement of both the parties. On 15th January, 1985, the wife (appellant in this case) filed an application stating that her statement recorded by Harimpur district court was obtained under pressure and intimidation from her husband. The wife stated that she will not be a party to the petition of divorce by mutual consent and prayed before the court to dismiss the petition. The orders by the district judge, were appealed to the High Court, which remanded the case to the District Judge for further consideration.