In a significant ruling, the Allahabad High Court set aside a divorce decree issued by a lower court, emphasizing that a decree based on mutual consent requires continued agreement from both parties at every stage. The judgment was delivered by a division bench comprising Justice Saumitra Dayal Singh and Justice Donadi Ramesh in the case titled First Appeal No. 155 of 2011.
Background of the Case
The case revolves around a marriage solemnized on February 2, 2006, under the Hindu Marriage Act, 1955. The respondent, who was employed with the Indian Army, filed for divorce on February 11, 2008, under Section 13 of the Hindu Marriage Act, alleging that his spouse was infertile and had deserted him on December 31, 2007.
The appellant initially filed a written statement on April 1, 2008, expressing consent to the divorce. However, as the proceedings progressed, the appellant sought to challenge the divorce decree by filing a second written statement on July 30, 2010, denying the grounds of infertility and desertion and claiming the birth of two children during the course of their marriage.
Legal Issues Involved
The primary legal issues in this appeal were:
1. Maintainability of the Second Written Statement: The appellant challenged the lower court’s decision to reject the second written statement, arguing that it was necessary to reflect the developments that occurred after the initial consent.
2. Validity of Divorce Decree Based on Withdrawn Consent: The appellant contended that the lower court erred in proceeding to grant the divorce based solely on the initial consent, which had been withdrawn through subsequent actions and statements.
3. Procedural Fairness: The appellant further argued that the lower court did not follow the proper procedure by deciding the divorce suit on the same date it sustained the objection to the second written statement without giving an opportunity for a fair hearing on the merits.
Observations and Decision of the High Court
The High Court noted several errors in the judgment of the lower court. Justice Saumitra Dayal Singh, writing for the bench, emphasized that the lower court had “failed to take note of the changed circumstances, including the settlement reached between the parties before the army authorities and the birth of the second child.”
The Court further held that a Hindu marriage could not be dissolved based solely on an earlier consent that had since been withdrawn. Citing various precedents, the Court clarified that “a decree of divorce by mutual consent can only be granted when mutual consent exists at the time of the decree” and that “the consent must survive until the passing of the decree.”
Key Observations:
1. On the Second Written Statement:
– The Court observed that while Order VIII Rule 9 of the Civil Procedure Code restricts the filing of subsequent pleadings, it allows for such filings with the leave of the court if they are necessary for a just resolution of the case. The lower court’s refusal to consider the second written statement was thus an error.
2. On Consent for Divorce:
– The bench underscored, “In granting the divorce on the strength of mutual consent, the learned Court below may have dissolved the marriage between the parties only if that consent continued to exist on the date of the order being passed.”
3. On Procedural Irregularities:
– The Court also noted procedural lapses, stating that “the lower court may not have proceeded to pass the order on merits on the divorce petition on the same date without the consent of the appellant,” thereby violating principles of natural justice.
The High Court concluded that the decree of divorce granted by the lower court was invalid due to the absence of continued mutual consent and procedural irregularities. The matter was remitted back to the lower court for fresh adjudication, with directions to consider the second written statement and to ensure that both parties have a fair opportunity to present their cases.
The appeal was allowed, and no costs were imposed. The judgment emphasizes the importance of maintaining fairness and due process in divorce proceedings, especially when a change in circumstances is evident.
The case was represented by advocates Uma Nath Pandey and Vinod Sinha for the appellant, and A.N. Pandey, D.R. Kushwaha, Manish C. Tiwari, and Rajesh Kumar Dubey for the respondent.
