1999 JTR(SC) 1485
2000 2 DMC 503 ; 2000 1 HinduLR 302 ; 2000 1 JT 532 ; 2000 10 SCC 243 ; 2000 WBLR 195 ; 2000 KHC 4261
SUPREME COURT OF INDIA
S.B.Majmudar : V.N.Khare
Kiran
Versus
Sharad Dutt
Case No. : 7149 of 1999
Date of Decision : 12/10/99
The Supreme Court, exercising its power under Article 142 of the Constitution of India, can grant a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, by accepting consent terms to resolve long-pending matrimonial disputes.
Act
Referred
:HINDU MARRIAGE ACT
: S.13, S.11
(A) Hindu Marriage Act, 1955 - Sections 11 and 13-B - Constitution of India - Article 142 - Divorce by mutual consent - Parties agreeing to divorce during the pendency of proceedings - Court may exercise power under Article 142 to accept consent terms and grant a decree for dissolution of marriage by mutual consent to avoid further delay in long-pending litigation. (Para 3)
Facts of the case:
A petition for divorce on grounds of desertion and cruelty, and for nullity of marriage on the ground of lack of custom regarding marriage between first cousins, had been pending for 11 years. During the pendency of the appeal, the parties agreed to a divorce by mutual consent and filed joint consent terms, including agreements on permanent alimony and monthly maintenance. The parties had been living separately for several years and had no children.
Findings of Court:
The terms suggested for mutual consent were found to be fair. Given that the parties were unable to reconcile and the proceedings had been pending for over a decade, there was no necessity to further delay the passing of the decree.
Issues: Whether the court could permit the amendment of a contested divorce petition to one for mutual consent and grant a decree under Article 142 of the Constitution of India.
Ratio Decidendi: In exercise of the power under Article 142 of the Constitution of India, the court can accept consent terms filed by parties and direct a decree for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, particularly when the litigation has been prolonged and the parties have reached a fair settlement.
Result: Appeal disposed of; decree for divorce by mutual consent granted.
Facts of the case:
A petition for divorce on grounds of desertion and cruelty, and for nullity of marriage on the ground of lack of custom regarding marriage between first cousins, had been pending for 11 years. During the pendency of the appeal, the parties agreed to a divorce by mutual consent and filed joint consent terms, including agreements on permanent alimony and monthly maintenance. The parties had been living separately for several years and had no children.
Findings of Court:
The terms suggested for mutual consent were found to be fair. Given that the parties were unable to reconcile and the proceedings had been pending for over a decade, there was no necessity to further delay the passing of the decree.
Issues: Whether the court could permit the amendment of a contested divorce petition to one for mutual consent and grant a decree under Article 142 of the Constitution of India.
Ratio Decidendi: In exercise of the power under Article 142 of the Constitution of India, the court can accept consent terms filed by parties and direct a decree for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, particularly when the litigation has been prolonged and the parties have reached a fair settlement.
Result: Appeal disposed of; decree for divorce by mutual consent granted.
S.B.MAJMUDAR, J.
(1) LEAVE granted.
(2) WE have heard learned counsel for the parties finally in this appeal.
(3) DURING the pendency of the proceedings at Special Leave Petition stage there was a development by which the parties agreed to get divorce by mutual consent. The matter was therefore, adjourned. We are happy to note that the consent terms came to be filed on these lines duly signed by the appellant-wife as well as respondent-husband and also by their Advocates-on-record. We have gone through I.A.No.3 of 1999 which has been jointly moved by both the parties for getting a decree of divorce by mutual consent. In our view, the terms suggested are quite fair. We find that both the parties are living separately since years and they are not in position to see eye to eye and live together. They are not blessed with any child. Therefore, the prayer in original Hindu Marriage Petition No.584 of 1988 which was for divorce on the ground of alleged desertion and cruelty by wife and also under Section 11 of the Hindu Marriage Act wherein the respondent-husband sought a decree for nullity on the ground that there was no custom of marriage between the first cousins would no longer survive. The prayer in I.A.No.3 of 1999 for permitting the parties to amend the Hindu Marriage Petition is allowed in terms of para 3 of the I.A. We grant amendment to the divorce petition by treating it to be one under section 13-B of the Hindu Marriage Act, 1955. The proceedings between the husband and wife for dissolution of marriage are pending since 11 years. On the fact of the case, there is no necessity to further delay the passing of the decree for divorce by mutual consent. We therefore, in exercise of our power under Article 142 of the Constitution of India accept the consent terms filed by the parties and direct that a decree for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 be passed in this case. The agreement regarding payment of permanent alimony and monthly maintenance as laid down in paragraph 2 (a) to (d) shall form part of the decree for dissolution of marriage by mutual consent. The judgments and decrees of the High Court and trial court are set aside. The Hindu Marriage Petition will stand allowed in terms of prayer for divorce by mutual consent. The appeal is disposed of accordingly. No costs.