The Delhi High Court clarifies that divorce by mutual consent under Section 13B of the Hindu Marriage Act can be granted only when both spouses jointly express consent.
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NEW DELHI: In a landmark ruling, the Delhi High Court recently set aside a decree of divorce granted by a Family Court, emphasizing that mutual consent cannot be presumed from separate contested petitions. This judgment reaffirms the importance of procedural and substantive law under Section 13B of the Hindu Marriage Act, 1955, and highlights the limitations of judicial authority in divorce proceedings.
Background of the Case
The dispute involved a marriage solemnized in 1992, which later deteriorated due to allegations of adultery and cruelty. The husband filed a petition alleging cruelty, while the wife filed a separate petition citing adultery and cruelty. Instead of adjudicating these on their individual merits, the Family Court treated the separate petitions as reflecting mutual consent and granted a divorce under Section 13B.
Aggrieved by this approach, the appellant approached the Delhi High Court, asserting that mutual consent had never been jointly expressed and the Family Court had exceeded its jurisdiction.
High Court’s Observations
A Division Bench comprising Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar highlighted that:
- Mutual consent is a substantive statutory requirement, not a procedural formality.
- Section 13B mandates a joint petition and requires the consent of both spouses to continue until the decree is granted.
- Courts cannot infer mutual consent from separate, contested petitions filed independently by each spouse.
The Court observed:
“Mutual consent cannot be inferred from the mere filing of separate divorce petitions, nor can it be substituted by the independent desire of each party to end the marriage in their individual way. It is only when both parties consciously and jointly agree to dissolve the marriage that the jurisdiction of the court under Section 13B of the HMA is validly invoked.”
Legal Precedents Cited
The Court relied on key Supreme Court judgments to underscore its stance:
- Smruti Pahariya v. Sanjay Pahariya (2009): Consent must exist at the time of filing and continue until the decree is granted.
- Anil Kumar Jain v. Maya Jain (2009): Only the Supreme Court can, under Article 142, convert a contested petition into a mutual consent divorce; no other court can exercise such extraordinary powers.
Additionally, the Court noted recommendations from the Committee on the Status of Women in India (1974) and the 71st Law Commission Report (1978), which emphasized that mutual consent must be express, unequivocal, and continuing.
Appearance:
Petitioner: Advocates Nandini Sen & Basab Sengupta
Respondent: Advocates Gauri Gupta & Rishabh Kumar Jain
Case Title:
UPINDER KAUR MALHOTRA versus CAPT TEGHJEET SINGH MALHOTRA AND ANR
MAT.APP.(F.C.) 136/2025 & CM APPL. 76632/2024
Read Judgment: