Orissa High Court
(An Application Under Articles 226 & 227 ... vs The Judge on 3 January, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.39609 of 2021
(An application under Articles 226 & 227 of the
Constitution of India).
Doyel Dey ... Petitioner
-versus-
The Judge, Family Court, ... Opposite Parties
Balasore & Another
For Petitioner : Ms. S. Jena, Advocate
For Opposite Parties : Mr. S. Pattanaik,
Advocate (OP No.2)
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:03.01.2025(ORAL)
G. Satapathy, J.
1. This writ petition by the petitioner-wife prays
to set aside the impugned judgment dated 22.11.2021
passed by the learned Judge, Family Court, Balasore in
C.P. No. 532 of 2020 dissolving the marriage between
the petitioner and OP No.2 U/S. 13-B of Hindu
Marriage Act, 1955 on mutual consent.
2. The facts not in dispute are that the petitioner
& OP No.2 are husband and wife and their marriage
was solemnized on 12.02.2018 as per the caste
custom of the parties and they resided together for
some time and due to dissension, a petition was filed
by both the parties for grant of mutual divorce U/S.
13-B of the Hindu Marriage Act. Accordingly,
conciliation was done, but before passing of the decree
on mutual consent, the writ petitioner withdrew her
consent unilaterally on 18.11.2021. However, the
learned trial Court notwithstanding to the withdrawal
of consent by the writ petitioner, has passed the
impugned judgment dissolving the marriage of the
parties on mutual consent. Being aggrieved, the writ
petitioner has challenged such judgment before this
Court.
3. In the course of hearing, on being prayed, the
name of Mr. Satyajit Mohapatra & associates stand
deleted from the cause list as brief as counsels for OP
No.2. However, Ms. Sailabala Jena, learned counsel
appearing for the petitioner by relying upon the
decision passed by the Apex Court in Smt. Sureshta
Devi vs. Om Prakash; AIR (1992) SC 1904
submits that the Court cannot pass decree on mutual
consent U/S.13-B of Hindu Marriage Act, if any of the
spouses withdraws his/her consent before passing of
the decree of divorce, but notwithstanding to
withdrawal of such consent by the writ-petitioner, the
learned trial Court in this case has granted decree of
divorce on mutual consent which is erroneous and
liable to be set aside.
On the other hand, Mr. Sanjay Pattanaik,
learned counsel appearing for OP No. 2 submits that
not only the conciliation between the parties was over,
but also the argument was over when the writ
petitioner withdrew her consent and judgment was
reserved and therefore, the writ petitioner cannot
withdraw her consent unilaterally to deprive the OP
No.2 from his legitimate right of getting a divorce on
mutual consent. He further submits that the impugned
judgment does not suffer from any illegality as the
same has been passed on sound appreciation of
evidence and analysis of materials on record.
4. After having considered the rival submissions
upon perusal of record, there appears no dispute with
regard to filing of a joint petition by both husband and
wife for grant of mutual divorce U/S. 13-B of the
Hindu Marriage Act on mutual consent, but it is also
not in dispute that the writ petitioner-cum-wife
withdrew her consent unilaterally on 18.11.2021 just
04 days before the passing of decree of dissolution of
marriage between the parties. The position of law in
this regard has been well explained and settled by the
Apex Court in Sureshta Devi (supra) wherein the
Apex Court at paragraph-13 has held thus:-
13. Sub-section (2) requires the Court to
hear the parties which means both the
parties if one of the parties at that stage
saying that "I have withdrawn my
consent", or "I am not a willing party
to the divorce, the Court cannot pass a
decree of divorce by mutual consent. If
the Court is held to have the power to
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 divorce U/S.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".
5. The factual position which is not in dispute in
this case is that the writ petitioner withdrew her
consent on 18.11.2021, but the judgment was passed
on 22.11.2021, however, the law as has been
explained by the Apex Court reveals that any of the
spouse can withdraw consent unilaterally and consent
being the essence of grant of decree of divorce U/S.
13-B of the Hindu Marriage Act, no decree of divorce
can be passed U/S.13-B of Hindu Marriage Act, 1955,
if any of the parties withdraws such consent just
passing of decree. In this case, although the writ
petitioner has withdrawn her consent just 04 days
before the passing of decree, but the learned trial
Court notwithstanding to such fact has dissolved the
marriage between the parties on mutual consent U/S.
13-B of the Hindu Marriage Act, which is not only
erroneous, but also unsustainable in the eye of law
and liable to be set aside.
6. In the result, the writ petition by the
petitioner stands allowed on contest, but in the
circumstance there is no order as to costs.
Consequently, the judgment dated 22.11.2021 passed
by the learned Judge, Family Court, Balasore in C.P.
No. 532 of 2020 is, hereby, set aside and the matter is
remitted back for fresh disposal in accordance with
law.
Taking into account the pendency of the
proceeding in C.P. No. 532 of 2020, the learned trial
Court is hereby requested to dispose of the case within
a period of six months from the date of production of
copy of this judgment.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 3rd day of January, 2025/S.Sasmal
Location: High Court of Orissa
Date: 06-Jan-2025 10:34:49
