Ten years after the death of her husband, a lady’s appeal against divorce decree granted by the family court has been allowed by the Delhi High Court.
In 2007, the family court had dissolved their marriage observing that they had reached to a point of no return and their marriage had broken down irretrievably. The wife filed an appeal against this and in 2008, the husband expired. He was represented in the proceedings by his father.
In her appeal, the wife’s contention was that the family court did not take into account the factum that he had withdrawn her consent to the grant of the decree of mutual consent and that she, having refused to participate in the same, cannot now be compelled to accept a divorce through mutual consent in as much as the mutuality to the consent does not exist.
Perusing the records of this case, Justice Anu Malhotra observed that the element of mutual consent have not continued at the stage of proceedings under Section 13B(2) of the Hindu Marriage Act, 1955 when the decree of divorce was granted, no such decree of divorce under Section 13B(2) of the Hindu Marriage Act, 1955 as amended, as granted vide the impugned order, could have been granted.
The court said: “In the absence of the continued mutual consent a decree of divorce under Section 13 B(2) of the Hindu Marriage Act, 1955 as amended cannot be granted as laid down in Smruti Pahariya Vs. Sanjay Pahariya and from the absence of one of the parties before the Trial Court, the presumption of consent for divorce cannot be attributed to that party as consent needs to continue till the date of the decree of divorce under Section 13B (2) of the Hindu Marriage Act, 1955 as amended and the Court has the statutory obligation to hear the parties to ascertain their consent which was clearly not done in the instant case, the appellant not even being present on the date 06.10.2007 i.e. the date of the decree of divorce granted through mutual consent.”