Sureshta Devi v. Om Prakash

Facts

The spouses jointly filed a petition for divorce by mutual consent under Section 13-B and their statements were recorded. Within a week the wife applied to withdraw, alleging her consent had been obtained under pressure and threat and that she would not be a party. The District Judge dismissed the divorce petition, but the High Court granted divorce, holding consent once given could not be unilaterally withdrawn.

Issues

• Whether a party to a Section 13-B petition can unilaterally withdraw consent before the decree, or whether consent once given is irrevocable
• At what stage the requisite mutual consent must exist

Arguments

The husband argued (with the High Court) that the crucial time for consent was when the petition was filed, and that voluntary consent could not later be nullified. The wife argued consent must continue to the date of decree and that she was entitled to withdraw it during the statutory waiting period.

Held

The Court held that the 6-to-18-month interregnum under Section 13-B(2) is meant to allow reflection, and the section requires the court, on the motion of both parties, to be satisfied that consent subsists and is free. Mutual consent is a sine qua non for a Section 13-B decree and must continue until the decree is passed; if at the inquiry one party says consent is withdrawn, the court has no jurisdiction to grant divorce. The decisions allowing unilateral withdrawal (Kerala, Punjab & Haryana, Rajasthan) were affirmed and the contrary view (Bombay, Delhi, M.P.) overruled. The appeal was allowed and the divorce decree set aside.

Ratio decidendi

Under Section 13-B HMA, mutual consent must continue from the filing of the petition until the decree of divorce; either party may unilaterally withdraw consent at any time before the decree, and absent subsisting mutual consent the court has no jurisdiction to dissolve the marriage.

Significance

Leading authority on divorce by mutual consent; though later read down by Hitesh Bhatnagar and the larger-bench treatment in Amardeep Singh (waiver of waiting period), Sureshta Devi remains the foundational ruling on the unilateral revocability of consent.

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