The Delhi High Court has ruled that a Family Court does not have the authority to suo motu convert separate, contested divorce petitions into a single decree for divorce by mutual consent. A Division Bench of Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar set aside a Family Court judgment that had dissolved a marriage under Section 13B of the Hindu Marriage Act, 1955, even though the parties had filed adversarial petitions against each other alleging cruelty and adultery.
The High Court held that the requirement of a joint petition and mutual agreement under Section 13B is a “substantive statutory requirement” and not a mere procedural formality that a court can bypass. It further clarified that such powers to mould relief are exclusively vested with the Supreme Court under Article 142 of the Constitution.
Background of the Case
The case involved an appeal filed by the wife against a judgment dated July 18, 2024, from the Family Court, Patiala House Courts, New Delhi.
The appellant and her husband were married on June 6, 1992, and have two children. Their relationship deteriorated around 2015-2016. The wife alleged that the husband, a pilot, had entered into an adulterous relationship with a co-worker.
In February 2019, the husband filed a petition (HMA No. 211/2019) seeking divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act (HMA). In response, the wife filed her own petition (HMA No. 596/2019) in June 2019, seeking divorce on the grounds of adultery and cruelty under Sections 13(1)(i) and 13(1)(ia) of the HMA, impleading the alleged adulterer as a co-respondent.
After evidence was presented by both sides, the Family Court, instead of adjudicating the competing claims of cruelty and adultery, dissolved the marriage by passing a suo motu decree of divorce under Section 13B (divorce by mutual consent). Aggrieved by this decision, the wife approached the High Court.
Arguments Before the High Court
The appellant’s counsel argued that the Family Court committed a “grave and manifest illegality” by converting adversarial petitions into a mutual consent proceeding. It was contended that the very basis of Section 13B is the “explicit, conscious, and simultaneous consent of both parties,” demonstrated through a joint petition, which was absent in this case. The appellant stressed that the Family Court failed to decide on the specific issues of cruelty and adultery that were framed and argued.
Conversely, counsel for the respondent-husband supported the Family Court’s decision. It was argued that since both parties had persistently sought divorce for years, their conduct established mutual agreement in substance. The requirement of a joint petition, the husband argued, was merely procedural, and the Family Court had wide discretionary powers under the Family Courts Act, 1984, to adopt a flexible approach to do “substantial justice.”
High Court’s Analysis and Findings
The High Court, in a detailed judgment authored by Justice Harish Vaidyanathan Shankar, found the Family Court’s approach to be “legally impermissible.” The Bench held that the lower court had disregarded the “separate and distinct fields in which Sections 13 and 13B of the HMA operate.”
Mutual Consent is a Substantive Requirement, Not a Formality
The court rejected the Family Court’s reasoning that since the ingredients for a mutual consent divorce (living separately for over a year, inability to live together, and a desire for divorce) were present, it could dispense with the “form” of a joint petition.
The High Court held, “This court is of the considered view that such approach of the learned Family Court undermines a substantive statutory requirement as a mere procedural formality. Section 13B of the HMA embodies not only a form but also essential substantive safeguards… which cannot be disregarded.”
The judgment emphasized that the most fundamental element of Section 13B is “mutual consent,” which cannot be inferred from separate, fault-based petitions. The court stated, “That consent cannot be inferred solely from the three factors listed above; it must be established as an unequivocal meeting of minds between the spouses while instituting the divorce petition.”
Consent Must Be Continuous and Unequivocal
Relying on the Supreme Court’s three-judge bench decision in Smruti Pahariya v. Sanjay Pahariya, the High Court reiterated that consent under Section 13B must exist at the time of filing the petition and continue until the final decree is passed. The court observed that “mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed.”
Family Courts Act Does Not Override Substantive Law
The Bench also rejected the Family Court’s reliance on Sections 9 and 10 of the Family Courts Act. It clarified that while these sections empower the court to encourage settlement and adopt its own procedure, they do not grant it the power to “alter, dilute or substitute the substantive requirements of other enactments, including the HMA.”
The court stated that a consensus on the terms and modalities of separation is necessary for a mutual consent divorce, and a court “cannot presume such consensus or foist upon them a decree of divorce on terms and conditions which they have neither envisaged nor agreed to.”
Family Court Cannot Exercise Powers Under Article 142
Critically, the High Court held that the Family Court had effectively assumed powers exclusive to the Supreme Court. Citing the case of Anil Kumar Jain v. Maya Jain, the Bench noted that only the Supreme Court, in the exercise of its extraordinary powers under Article 142 of the Constitution, can convert a contested proceeding into one of mutual consent to do complete justice.
“While the Hon’ble Supreme Court may, in exercise of Article 142, mould reliefs and even convert contested proceedings into a mutual consent divorce… no other court, not even the High Courts, can arrogate to itself such extraordinary jurisdiction,” the Bench declared, finding the Family Court’s action “wholly without authority and legally unsustainable.”
Decision
Allowing the appeal, the Delhi High Court set aside the judgment and decree of the Family Court dated July 18, 2024. Both divorce petitions, HMA No. 211/2019 filed by the husband and HMA No. 596/2019 filed by the wife, have been restored to the file of the Family Court for fresh adjudication on their respective merits in accordance with the law.
