2. Facts of the case
The appellant /husband (Anil Jain) and the respondent /wife (Maya Jain) enter
into a marital relationship on 22/06/1985. They had two sons aged 16 years and
13 years.
On account of serious differences arose between them both of found finds
difficult to live together and hence they were living separately for 2 years.
The husband had given the entire business of “Gaurav Lodge “ to his wife so
that she could maintain herself in future and it was mutual decided that he
would any stridhan herein afterwards.
The husband has abandoned his right of business and a separate agreement
has been executed regarding the same on 4/09/2004.
The joint application was made in the trial court to dissolve the marriage
under section 13-B by the mutual consent of both the parties.
3. PROCEEDINGS
In the trial court a joint application was filed by the parties under section
13- B of the Hindu Marriage Act,1955.
The application was signed by both the parties mutually by consents to
dissolve the marriage and a decree of divorce by mutual consent be passed.
The trial court considered their prayer and asks to come after 6 months.
After 6 months the wife withdrews back her consent and no more want
the decree of divorce but want to live separately.
Hence the court dismissed the application under section 13-B of the
Hindu Marriage Act, 1955.
4. HIGH COURT
The appellant filed the appeal under section 28 of the Hindu Marriage Act,1955
in High Court of Madhya Pradesh at Jabalpur. The court asked the parties to
appear on 21/02/2007 for reconciliation. Eventually, the parties appeared before
the court on 12/03/2007 and the court passed the following order:
The Supreme Court in the similar facts and circumstances in the case of Ashok
Hurra v. Rupa Bipin Zaveri, : (1997) 4 SCC 226, passed the decree of divorce but
the said power was exercised under Article 142 of the Constitution of India
which this Court is not enjoying. Since there is no application of husband to
obtain divorce on any of the ground envisaged under Section 13 of the Act and
looking to the peculiar facts and circumstances that the consent should continue
till the divorce decree is passed, the court is of the view that decree of divorce
by mutual consent under Section 13 -B of the Act cannot be passed.
5. ARTICLES INVOLVED
ARTICLE 142 OF THE INDIAN CONSTITUTION
Enforcement of decrees and orders of Supreme Court and unless as to
discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may
pass such decree or make such order as is necessary for doing complete justice
in any cause or matter pending before it, and any decree so passed or orders
so made shall be enforceable throughout the territory of India in such manner
as may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by
order prescribe
6. JUDGMENT
The various decisions merely indicate that the Supreme Court can in special circumstances
pass appropriate orders to do justice to the parties in a given fact situation by invoking its
powers under Article 142 of the Constitution, but in normal circumstances the provisions of
the statutes have to be given effect to.
The law as explained in Sureshta Devi's case still holds good, though with certain variations
as far as Supreme Court is concerned and that too in the light of Article 142 of the
Constitution.
The stand of the respondent-wife that she wants to live separately from her husband but is
not agreeable to a mutual divorce is not acceptable, since living separately is one of the
grounds for grant of a mutual divorce and admittedly the parties are living separately for
more than seven years. [Para 21] [105-A-B]
The judgment of the High Court is set aside and the petition for grant of mutual divorce u/s.
13-B of the Act is accepted. There will be a decree of divorce on the basis of the joint petition
filed by the parties before the trial court u/s. 13-B of the Act and the marriage shall stand
dissolved from the date of this judgment
