Anil Jain vs Maya Jain [(2009)10 SCC 415]

Facts of the case:

Anil Kumar Jain (the appellant) was married to Maya Jain (the respondent), according to Hindu rituals, on 22nd June 1985. The couple decided to file for a mutual divorce because of the conflicts between them. On 4th September 2004, they filed a joint petition for divorce under Section 13-B of the Hindu Marriage Act, 1955 in the District Court at Chhindwara. It was registered as Civil Suit No.167-A of 2004.

As per the provisions mentioned in Section 13-B of the Hindu Marriage Act, 1955, the Second Additional District Judge gave the couple six months to rethink their decision. After six months had passed, the learned Second Additional District Judge presided over the matter on 7th March 2005. When the joint divorce petition was filed, both of them wanted to separate. However, Maya Jain decided to say no to their divorce after the expiration of six months. The husband still wanted a divorce, but the Second Additional District Judge dismissed the joint petition due to the lack of mutual consent.

Anil Kumar was aggrieved by the District Court’s decision, which is why he decided to file an appeal under Section 28 of the Hindu Marriage Act, 1955 in the High Court of Madhya Pradesh on 4th April 2005. However, while the proceedings continued in the High Court, the respondent expressed her desire to live separately, but she did not consent for divorce. Therefore, the petition for joint divorce could not be passed, and the High Court Judge dismissed the first appeal.

Aggrieved by the High Court decision, the appellant, Anil Kumar Jain, decided to file a second appeal in the Supreme Court of India. 

Issues of the case

Whether the joint petition of divorce can be passed under Section 13-B of the Hindu Marriage Act when one of the parties to the joint petition withdraws their consent to divorce before the petition is passed? 

The rule of law

Divorce is a legal process in which the marriage of two adults can be dissolved. The divorces of Hindus (Buddhists, Sikhs, Jains) are governed by the Hindu Marriage Act, 1955, while the Muslims are governed by Personal Laws of Divorce and the Dissolution of Marriage Act, 1939, as well as the Muslim Women Act, 1986. Similarly, Christians’ divorce is governed by the Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872.

This case is primarily focused on Section 13-B of the Hindu Marriage Act, 1955. This section was added in 1976 to introduce the concept of divorce through mutual consent. The only condition it has is that there should be a gap of 18 months before a decree of divorce is passed. A couple who has followed the judicial separation for one year can file a divorce petition under Section 13-B of the Hindu Marriage Act, 1955. The Court can then ask them to wait for six more months to reconsider their decision (as seen in the present case). After this period, if the couple still wants the divorce petition to be passed, the decree is passed.

To use mutual consent as a ground for divorce, the following essentials should be fulfilled:-

• Parties must be living separately – As mentioned before, the husband and wife must be living separately for at least a year before they file the divorce petition.
• Parties must not be able to live together – There should be a complete breakdown of marriage before the decree of divorce is passed. The damage must be such that even after counseling and reconciliation, the couple cannot manage to stay under the same roof.
• Parties have mutually agreed that the marriage must be dissolved – It is essential for both the parties to give their consent before the decree for divorce is passed. This essential is not fulfilled in the case of Maya Jain and Anil Jain. Maya decided to take back her consent before the decree of divorce could be passed.

Therefore, the case cannot proceed until and unless the husband, as well as the wife, agrees that the marriage has completely broken down and there is no point in continuing their married life.

Judgment

The Court held that the wife has clearly stated her decision to stay away from her husband. Therefore, she has no intention of resuming her role as the appellant’s wife. Therefore, the Supreme Court of Indian passed the appeal and granted the divorce petition. 

Judgment Analysis

Mr. Rohit Arya, a senior advocate who represented the appellant, argued that before the petition for mutual divorce was filed, a settlement was arranged, which was properly executed by the appellant. Under this settlement, various valuable property rights were transferred to the wife, which she was still enjoying when she decided to revoke her consent.

Apart from the previously stated reason, the respondent had mentioned that she wants to continue living separately, which means that she has no desire to continue her role as a wife. According to Mr. Arya, this should be enough for the Court to realize that the marriage has broken down completely. In a similar case of Ashok Hurra V. Rupa Bipin Zaveri [1], the Court passed the decree of mutual divorce by using the extraordinary powers granted under Article 142 of the Constitution of India.

The Supreme Court of India has the power to invoke Article 142 in order to give “complete justice.” Thus, the appellant pleaded with the Supreme Court to exercise its powers under Article 142 and pass the decree of divorce without attaining the consent of his wife.

In this case, the basic issue was whether the Supreme Court should invoke Article 142 or not. The Hon’ble Supreme carefully analyzed various case laws before coming to their decision. Two propositions were mentioned in the judgment of the Court. The Court stated that even though the condition of irretrievable marriage is not illustrated as a ground for divorce in Section 13 or Section 13-B of the Hindu Marriage Act, 1955, the said doctrine can still be imposed by exercising the powers granted to the Supreme Court in Article 142. The Hon’ble Court can even use this power to pass a divorce petition without giving a gap of six months.

However, this power is only vested upon the Supreme Court, and no other Court of Law (High Court and Civil Court) is permitted to use Article 142. Secondly, the Supreme Court stated that it has the power to convert a case proceeding under Section 13 to Section 13-B and pass the decree of mutual divorce without waiting for six months. However, the Court was quick to mention that this power (Article 142) is only granted to the Supreme Court of India. The other Courts are not competent enough to pass a decree of divorce if one of the parties has revoked their consent.

In the case of Smt. Sureshta Devi Vs. Om Prakash [2], the Supreme Court held that the consent of both the parties must be present till the decree of divorce is passed. If one of the parties revokes their consent, then the divorce petition will be dismissed. However, this decision was not followed in the case of Ashok Hurra [1]. In this case, the situation was reconsidered, and the doctrine of irretrievable breakdown of marriage was implemented.

The same decision was followed in the case of Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon (Capt.) & Anr [3]. In this case, also, the consent was withdrawn after a week of filing the joint divorce petition. The decree of divorce was still passed by invoking the powers granted in Article 142 of the Constitution of India. Again in a lawsuit titled Swati Verma vs. Rajan Verma & Ors [4], the doctrine of irretrievable breakdown of the marriage was enforced.

The various decisions mentioned above demonstrates that the Supreme Court can invoke Article 142 in special circumstances to provide justice to the parties. The Hon’ble Court mentioned that the law mentioned in the case of Sureshta Devi Vs. Om Prakash[2] still holds. But the Court can implement the doctrine of irretrievable breakdown of the marriage depending on the circumstances and the facts of the case. In the current case, the wife has withdrawn her consent to dissolve her marriage. However, she does not want to resume her role as the wife of the appellant. Thus, it can be seen that she had no intention of trying to make the marriage work. Therefore, the appeal was passed. The order of the High Court was set aside, and the petition for granting mutual divorce under Section 13-B was passed.

Conclusion

In the rich culture of our country, marriage is considered to be sacred. Divorces or judicial separation should be the last resort of the married couples. However, the number of divorces based on mutual consent is rapidly increasing. This is why it is very wise for the Court of Law to carefully consider the circumstances of the case before passing the decree of divorce through mutual consent. The decision made by the Hon’ble Court was fair and wise. When the respondent announced that she wanted to continue living separately without completely dissolving their marriage, the usual method would have been to direct the appellant to file a separate petition in the Family Court under Section 13. However, the Court wisely noted that there are certain facts of this case that attract the provisions of Section 13-B. 

One of the grounds that is mentioned in Section 13-B is that the couple should be living separately for at least a year. In this case, the respondent and the appellant have been living separately for about seven years. As part of the agreement, the husband had transferred special property rights to his wife, after which she decided to withdraw her consent from the joint divorce petition. Even after the transfer, she was still adamant about living separately without taking a divorce. Therefore, the Court’s decision to pass the appeal was equitable and just.

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References:

[1]Ashok Hurra vs Rupa Ashok Hurrarupa Bipin Zaveri, AIR 1997 SC 1266

[2]Smt. Sureshta Devi Vs. Om Prakash, AIR 1991 2 SCC 25

[3]Chandrakala Menon (Mrs.) vs. Vipin Menon (Capt.),  AIR 1993 2 SCC 6

[4]Swati Verma vs. Rajan Verma, AIR 2004 SC 161

A Kabir, Anil Kumar Jain vs Maya Jain,  Indiankanoon, (1 September 2009), https://indiankanoon.org/doc/447829/

Anisha Agarwal, Shweta Pandey, Anil Jain v Maya Jain, 2009, Slideshare, (24 September 2014), https://www.slideshare.net/AnishaAgarwal21/anil-jain-v-maya-jain-2009

Aapka Consultant, Divorce by Mutual Consent, Aapka Consultant, (December 23, 2017),  https://www.aapkaconsultant.com/blog/divorce-by-mutual-consentdivorce-by-mutual-consent/