Chh HC | Judicial separation in place of divorce not to be granted mechanically in applications for divorce by mutual consent; Serious dispute not pre-requisite for seeking mutual consent

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and N.K. Chandravanshi, JJ., reversed a decree of judicial separation passed by the trial court, and instead passed a decree of divorce by mutual consent as originally prayed for the parties.

The parties got married in 2017. However, they remained together only for 2 days, and thereafter never lived as husband and wife. After one year of the marriage, they preferred a joint application for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. The application was signed, verified and supported by both parties by filing their respective affidavits. They were examined before the trial court after completion of 6 months cooling-off period. In their deposition also, they stood by their decision to seek divorce by mutual consent. However, the trial Court refused to pass a decree of divorce by mutual consent and instead passed a decree for judicial separation for a period of one year. Aggrieved, the wife approached the High Court in the instant appeal.

The High Court noted that while granting a decree for judicial separation in place of a decree of divorce by mutual consent, the trial court referred to the provisions contained in Section 13-A of the Hindu Marriage Act, which provides that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Discussing further, the Court stated that the provisions contained in Section 13-A would attract only when the trial court is satisfied “having regard to the circumstances of the case” that it considers it 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.

While passing the impugned decree, the trial court observed that the period of their staying together is so short that it is not possible that any serious dispute would have arisen between the parties. The trial court assumed that the dispute between the parties might not be of such intensity which would force them to seek divorce by mutual consent.

Disapproving such approach, the High Court said that the provisions contained in Section 13-B 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. 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 conclusion, the Court was of the opinion that having regard to the fact that the parties presented the application under Section 13-B by appearing before the trial court on 13-3-2018 and thereafter, again appeared on several dates, the trial Court should have passed the decree of divorce by mutual consent instead of decree for judicial separation. Therefore, the appeal was allowed and a decree of divorce by mutual consent was passed. [Sandhya Sen v. Sanjay Sen, 2021 SCC OnLine Chh 1888, decided on 6-4-2021]

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