Hiren Anilkumar Panchal Through ... vs Jinal Prafulchandra Panchal
2021 Latest Caselaw 10253 Guj

     C/FA/2026/2021                               ORDER DATED: 02/08/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2026 of 2021

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 HIREN ANILKUMAR PANCHAL THROUGH HIS POWER OF ATTORNEY
                ANILKUMAR KALIDAS PANCHAL
                          Versus
              JINAL PRAFULCHANDRA PANCHAL
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Appearance:
MR PUNAM G GADHVI(3724) for the Appellant(s) No. 1
MS KEYA D PATEL(11258) for the Appellant(s) No. 1
ARCHITA M PRAJAPATI(8241) for the Defendant(s) No. 1
MR MP PRAJAPATI(677) for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 02/08/2021

                          ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This first appeal under Section 19 of the Family Courts Act, 1984 (for short "the Act, 1984") is at the instance of the husband and is directed against the order passed by the Family Court No.6, Ahmedabad below Exh.1 in the Family Suit No.504 of 2019 filed by the parties to dissolve the marriage with mutual consent under Section 13(B) of the Hindu Marriage Act, 1955 (for short "the Act, 1955").

2. It appears from the materials on record that the appellant and the respondent preferred a joint application in the Family Court at Ahmedabad for dissolution of marriage by mutual consent under Section 13(B) of the

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Act, 1955. After the Family Suit No.504 of 2019 came to be instituted, the wife preferred an application Exh.11 pointing out to the Family Court that her consent had been obtained by threats, pressure, duress, coercion etc. The wife made herself very clear that she was not ready and willing to give consent to dissolve the marriage. In such circumstances, the Family Court had to adjudicate the application Exh.11 and, ultimately, vide the impugned order thought fit to dismiss the suit instituted for dissolution of marriage with mutual consent. The Family Court, while dismissing the suit, observed as under;

"3. Before I deal with the present petition, a reference may be made to the provisions of Section 13(B) of the Act which is extracted herein below:-

"13B Divorce by mutual consent.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as

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it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

The plain reading of the above provisions makes it very clear that the consent given at the time of filing of the petition for divorce by mutual consent should subsist till decree is passed in the petition and in the event, either of the party withdraws the consent before passing of the decree, petition would not survive and would have to be dismissed.

4. it is the case of the petitioner No.2 that under the tremendous pressure from the community leaders and other relatives, she has signed this consent petition. It is also case of the petitioner No.2 that the petitioner No.2 has committed mischief, criminal breach of trust, cheating and criminal conspiracy with petitioner No.2. Further, the petitioner No.2 has clearly stated that they were living in Canada together upto 21.1.2019 and by this way, the petitioner No.1 has misguided this Court while filing the present petition.

5. I would like to refer to the case of Smt. Sureshta Devi vs. Om Prakash reported in AIR 1992 SC 1904 which squarely applied to the facts of the present case. In that judgment, Hon'ble Supreme Court has clearly held that, the consent given at the time of filing of the petition under Section 13(B) of the Act is not irrevocable and such consent must continue till divorce decree is passed. Sub-Section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn by consent", or " I am not a willing party to the divorce", the Court cannot pass as decree of divorce by mutual consent. If the Court is held to have the power make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for

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divorce under Section 13(B). Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard.

6. I would also like to refer the case of Rupali @ Chetna vs. Sunil Date, reported in AIR 2006 P & H 63, wherein it has been held by the Hon'ble Punjab and Haryana High Court that where the wife moved an application to withdraw her consent alleging fraud and undue influence then the same is not needed to be determined by framing an issue. Since she is entitled to withdraw the same and her consent should have continued till the passing of a decree for divorce by mutual consent.

7. Hence, in view of the legal position and in light of the facts and circumstances of the case in hand, I am of the view that the petitioner No.1 has committed mischief, criminal breach of trust, cheating and criminal conspiracy with petitioner No.2 and the petitioner No.1 has misguided this Court while filing the present petition regarding completion of the one year statutory period of separation between both the petitioners, therefore, in the interest of justice, I passed following final order:

FINAL ORDER

(1) The present petition under Section 13(B) of the Hindu Marriage Act, 1955 is hereby ordered to be dismissed.

(2) in the interest of justice, no order as to costs."

3. Being dissatisfied with the impugned order passed by the Family Court, referred to above, the husband has come up before this Court with the present appeal.

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4. Mr. Punam Gadhvi, the learned counsel appearing for the appellant-husband vehemently submitted that the Family Court committed a serious error in dismissing the family suit on the ground that the wife had not, on her free will and volition, given consent to dissolve the marriage. He would submit that the allegations levelled by the wife as regards the harassment, threats, pressure are all baseless and frivolous. He would submit that the wife was always willing to get the marriage dissolved with mutual consent. In such circumstances, referred to above, Mr. Gadhvi prays that there being merit in his appeal, the same be allowed and the impugned order be quashed and set aside.

5. On the other hand, Ms. Archita Prajapati, the learned counsel has appeared on behalf of the respondent-wife. She would submit that no error, not to speak of any error of law, could be said to have been committed by the Court below in passing the impugned order.

6. Ms. Prajapati would submit that even if an application has been filed jointly by the husband and wife under Section 13(B) to dissolve the marriage with mutual consent, the wife can, at any point of time before the final decree is passed, withdraw her consent. In such circumstances, referred to above, Ms. Prajapati prays that there being no merit in this appeal, the same be dismissed.

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7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Family Court committed any error in passing the impugned order.

8. The position of law as explained by the Supreme Court in the case of Smt. Sureshta Devi vs. Om Prakash, reported in AIR 1992 SC 1904 is that the consent given at the time of filing of the petition under Section 13(B) of the Act is not irrevocable and such consent must continue till the decree of divorce is passed. If at any point of time, the wife decides to withdraw her consent, the law permits her to do so. Here in the present case, it is specifically alleged that the wife was threatened and pressurized by the community leaders and others to give her consent for dissolution of marriage under Section 13(B). Such a consent is no consent in the eye of law. The consent has to be voluntary, free of any pressure, duress or influence. In such circumstances, referred to above, if the Family Court dismissed the application filed under Section 13(B) of the Act, then, in our opinion, no error could be said to have been committed.

9. We are informed that the husband has already instituted a fresh family suit against his wife for divorce on other grounds available to him in law. The Family Court shall proceed further with such newly instituted suit on its own merits without being influenced in any manner by any

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of the observations made by this Court in the present order.

10. With the aforesaid, this appeal fails and is hereby dismissed.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J)

Vahid