Jharkhand High Court Sets Aside Mutual Consent Divorce Decree, Says Appeal Lies When Consent Or Statutory Safeguards Are In Question

The Jharkhand HC has held that although a decree of divorce passed by mutual consent under Section 13B of the Hindu Marriage Act, 1955 is ordinarily not appealable, an appeal can be maintained where the genuineness of consent is disputed or mandatory statutory safeguards have not been followed. The Court set aside a mutual consent divorce decree after finding that the Family Court had failed to adequately examine a dispute concerning the date of marriage and the voluntariness of the wife's consent.

A Division Bench of Justice Sujit Narayan Prasad and Justice Sanjay Prasad observed that the Family Court must verify the foundational facts and genuineness of consent before dissolving a marriage, and that a settlement between the parties cannot substitute compliance with statutory requirements.

The Court was hearing an appeal under Section 19(1) of the Family Courts Act, 1984, filed by a wife challenging a decree dated August 17, 2024, passed by the Additional Principal Judge, Family Court, Ranchi, dissolving her marriage by mutual consent. According to the joint divorce petition filed before the Family Court, the parties had married on April 21, 2023, and had been living separately since June 1, 2023, owing to incompatibility and matrimonial differences.

The parties filed their joint petition for divorce on June 12, 2024. The matter was referred to mediation, where both parties reportedly maintained their decision to separate. The Family Court subsequently granted divorce by mutual consent under Section 13B of the Hindu Marriage Act.

However, the wife challenged the decree, contending that the marriage had actually taken place on April 21, 2024, and not April 21, 2023, as recorded by the Family Court. She argued that the joint divorce petition was therefore filed less than two months after the marriage, making it impossible to satisfy the mandatory requirement under Section 13B(1) that the parties must have lived separately for at least one year before seeking divorce by mutual consent.

The High Court first examined whether an appeal under Section 19 of the Family Courts Act could be maintained against a decree of divorce passed on mutual consent. Referring to decisions of various High Courts, including Bombay, Gujarat, Allahabad, Kerala, Madras and Punjab and Haryana, the Bench noted that appeals against mutual consent divorce decrees had been entertained where the decrees were passed in violation of statutory procedure without proper inquiry by the Family Court.

The Court explained that although a mutual consent decree ordinarily rests upon the voluntary agreement of both parties, the position changes where the very foundation of consent is challenged. It observed:

“Ordinarily, a decree of divorce passed on mutual consent under Section 13-B of the Hindu Marriage Act is not open to challenge by way of appeal, since it rests upon the voluntary agreement of both parties. However, where the very foundation of such consent is disputed alleged to be obtained by coercion, fraud, or without bona fide intention the matter assumes a different complexion. In such case it becomes the solemn duty of the Court to conduct an inquiry into the genuineness and voluntariness of the consent before proceeding to dissolve the marriage. In the present case, the Family Court failed to undertake such inquiry and recorded its satisfaction mechanically.”

The Bench further held that a mutual consent decree may be challenged where the consent itself is disputed and statutory safeguards have not been observed. The Court stated:

“In view of these circumstances, this Court is of the considered opinion that even a consent decree may be assailable where the consent itself is in question and the statutory safeguards have not been observed. Accordingly, an appeal against such a decree is maintainable, subject to objections raised by the opposite party, and the impugned judgment and decree cannot be sustained without proper scrutiny of the foundation fact of date of marriage between the parties and voluntariness of the appellant's consent.”

Turning to the facts, the Court found that the discrepancy between the marriage date recorded by the Family Court and the date asserted by the wife was not an inconsequential error. It observed that if the wife's assertion that the marriage took place on April 21, 2024 was established, the joint petition filed on June 12, 2024 would raise a substantial question concerning compliance with the mandatory one-year separation requirement under Section 13B(1). The Court emphasised that the date of marriage was a foundational fact which the Family Court was required to ascertain before recording its satisfaction regarding the statutory requirements for divorce by mutual consent.

Further, the Court held that the Family Court was required to verify whether the wife's consent was free, informed and voluntary, and whether she continued to consent to dissolution when the decree was passed. It noted that merely recording a settlement before the Mediation Centre could not relieve the Family Court of its obligation to verify the genuineness of consent and truthfulness of material averments.

At the same time, the High Court clarified that the wife's allegation of coercion could not automatically be treated as established merely because it was raised in the appeal. Such an allegation required proper inquiry and verification.

The Bench held that neither the convenience of the parties nor the existence of a purported settlement could validate a decree passed in disregard of statutory preconditions. Finding that the Family Court had failed to adequately examine the disputed date of marriage and the voluntariness of consent, the High Court set aside the judgment and decree dated August 17, 2024.

The matter was remitted to the Additional Principal Judge, Family Court, Ranchi, for fresh consideration of the relevant facts and statutory requirements.

Appearance:

For the Appellant: Md. Razaullah Ansari, Advocate

For the Respondent: Mr. Binod Singh, Advocate