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Case Number

First Appeal from Order No. 20-M of 1986

Attorney(S)

I.S. Vimal
G.S. Punia
For Respondent

Judges

D.S Tewatia
M.R Agnihotri, JJ.

Acts

SECTION 13 B HINDU MARRIAGE ACT 1955
HINDU MARRIAGE ACT
subsection (2) of Section 13-B
section 13-B

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

The parties, Nachhattar Singh and Smt. Harcharan Kaur, were married on 26 June 1970 by Anand Karaj. They lived together for about thirteen years and had two children: a son, Hardeep Singh (about 12½ years) and a daughter, Mandeep Kaur (about 4½ years) (as recorded in the opinion).

Relations became strained in December 1982 and they began living separately from January 1983. The parties jointly presented a petition under section 13-B of the Hindu Marriage Act, 1955, for dissolution of marriage by mutual consent on 23 July 1984. Statements were recorded on 24 July 1984 and the matter was adjourned to satisfy the statutory six‑month requirement under section 13-B(2).

On the adjourned date (28 January 1985) the wife did not appear and was summoned to 6 February 1985. On 6 February 1985 the wife stated in Court that she did not want a divorce and the trial Court dismissed the petition on that basis.

The husband appealed by filing F.A.O. No. 100-M of 1985. The Single Judge allowed that appeal on 9 September 1985 (reported as Nachhatar Singh v. Harcharan Kaur (1986-1) 89 PLR 24), set aside the trial Court's dismissal and remanded the case for inquiry under section 13-B(2).

Pursuant to the remand, the trial Court conducted the inquiry, found that the petition had in fact been presented by both parties with mutual agreement and that the conditions in section 13-B(1) (referred to in the opinion) were satisfied, and passed a decree of divorce under section 13-B(2) on 17 December 1985.

The wife (Smt. Harcharan Kaur) appealed this decree to the Division Bench. The Division Bench admitted the appeal because of conflicting Single Bench authorities on whether consent must be given both initially and at the final hearing under section 13-B. The Court attempted reconciliation but the parties refused; the appeal was heard on its merits and is the subject of the present opinion.

Legal Issues Presented

Whether a party to a petition under section 13‑B of the Hindu Marriage Act, who had previously joined in presenting a petition for dissolution of marriage by mutual consent, may unilaterally withdraw that consent before the decree is finally passed.
Whether the parties must continue to signify mutual consent at the final hearing (i.e., consent must subsist up to the date of the decree) in order for a decree under section 13‑B(2) to be passed.

Arguments of the Parties

Appellant's Arguments (Smt. Harcharan Kaur — represented by Mr. I.S. Vimal)

Submitted that the earlier Single Judge's view (in F.A.O. No. 100-M of 1985) was incorrect and should be reconsidered.
Contended that a petition under section 13‑B could be withdrawn unilaterally by either party; the statute does not contemplate a requirement of a joint application for withdrawal and joint action is not practical in litigation.
Relied on High Court decisions said to support unilateral withdrawal: Gurdip Singh Johar v. Kulwant Kaur (1985 1 H.L.R 503) and Santosh Kumari v. Virendra Kumar (1986 1 H.L.R 620 Raj.).

Respondent's Arguments (Nachhattar Singh — represented by Mr. G.S. Punia)

Relied on the earlier Single Judge judgment in the same matter (reported as (1986-1) 89 PLR 24) which had set aside the trial Court's dismissal and remanded for inquiry, arguing that that decision supported the non‑revocability of consent once jointly given for section 13‑B petition.
Supported the non‑revocability position with authority from other High Court decisions: Nitin Ramnaik Lal Jhaveri v. Padmini Nitin Jhaveri (1985 1 K.L.R 668 Bom.), Jayashrte Ramesh v. Ramesh Bhikaji (1984 Mah. L.J 308), and Meena Dutta v. Anirudh Dutta (1985 1 H.L.R 280).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nachhattar Singh v. Harcharan Kaur ((1986-1) 89 PLR 24) — earlier Single Judge judgment in the same case	Held that a petition under section 13‑B could not be proceeded with if one party withdrew consent; the trial Court's dismissal for want of consent was set aside and remitted for inquiry.	The Division Bench ultimately disagreed with the legal view expressed by that Single Judge judgment (on the law) but held that the earlier inter partes remand order was final and binding on the parties; therefore the trial Court's subsequent inquiry and decree (pursuant to that remand) could not be upset by the appellant.
Gurdip Singh Johar v. Kulwant Kaur (1985 1 H.L.R 503)	Cited as authority supporting the proposition that a petition under section 13‑B may be withdrawn unilaterally (i.e., consent can be withdrawn).	Noted by the Court as part of the line of authorities favouring revocability; the Division Bench expressed agreement with the view in this line of cases (i.e., that consent must subsist up to the decree).
Santosh Kumari v. Virendra Kumar (1986 1 H.L.R 620 Raj.)	Cited as supporting the view that consent may be revoked by one party.	The Court expressly stated its agreement with the judgments in Gurdip Singh Johar and Santosh Kumari when formulating its legal position on revocability of consent.
Nitin Ramnaik Lal Jhaveri v. Padmini Nitin Jhaveri (1985 1 K.L.R 668 Bom.)	Cited for the opposite proposition — that once parties have consented to a section 13‑B petition, the consent cannot be withdrawn unilaterally.	Referenced by respondent's counsel as supporting the non‑revocability view; the Division Bench stated its disagreement with this line of authorities.
Jayashrte Ramesh v. Ramesh Bhikaji (1984 Mah. L.J 308)	Another authority cited for the proposition that consent once given could not be unilaterally withdrawn.	Noted by the Court as part of the authorities taking the non‑revocability line, which the Division Bench did not follow on the law.
Meena Dutta v. Anirudh Dutta (1985 1 H.L.R 280)	Cited for the proposition that consent once given is not revocable unilaterally.	Referred to as part of the opposing line of authority; the Division Bench rejected that line on the point of law.
Halsbury's Laws of England, 4th Ed., Vol. 13, para 645 (citing Beaks v. Beales (1972) 2 All E.R. 667)	Principle cited: "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard" — i.e., consent must subsist up to the moment the decree is granted.	Adopted by the Court as supporting the proposition that consent must continue up to the date of the decree and may be revoked before final disposal; the Court relied on this principle in its analysis of section 13‑B.
Satyadhyan Ghosal v. Deorajin Debi (AIR 1960 SC 941)	Authority cited for the proposition that an earlier final inter partes decision remains binding on the parties even if the law later changes.	Relied on by the Division Bench to hold that the Single Judge's earlier remand order (inter partes and final as between the parties) was binding on the appellant and precluded re‑litigation of that point.
Mt. Anarjia v. Tengari Kabar (AIR 1962 Patna 65)	Cited for the same principle of finality and binding effect of an earlier inter partes decision.	Relied upon by the Court in support of the conclusion that the earlier remand order bound the parties despite a subsequent change in the law.
Prabhu Halwai v. Fulchand Khandelwal (AIR 1969 Patna 16)	Cited to support the proposition that an earlier final decision inter partes is binding upon the parties.	Used to buttress the Court's conclusion that the earlier Single Judge remand was binding and thus the trial Court's compliance with that remand could not be upset by the appellant.
Sita Ram Goel v. Sukhnandi Dayal (1971 3 SCC 488)	Authority cited for the binding effect of prior final decisions inter partes.	Relied on by the Court to justify the conclusion that the appellant was precluded from re‑arguing the point covered by the earlier Single Judge decision.

Court's Reasoning and Analysis

The Division Bench proceeded in two steps: first, it considered the proper legal interpretation of section 13‑B of the Hindu Marriage Act; second, it addressed the impact of the earlier Single Judge remand (an inter partes decision) on the present appeal.

On the statutory question, the Court rejected the view taken by the earlier Single Judge and by some High Court decisions that consent given at the time of presenting a section 13‑B petition could not thereafter be withdrawn unilaterally. The Division Bench's central legal proposition, stated in clear terms, is:

Consent to a petition under section 13‑B must continue to be signified by both parties up to the date when the decree is passed; the consent must be a subsisting consent at the moment the decree is granted.
Either party is at liberty to revoke its consent any time before the petition is finally disposed of; therefore, if one party revokes consent prior to final disposal, the decree cannot be granted under section 13‑B on the basis of the earlier joint presentation alone.
The object of section 13‑B is to provide a speedy remedy when both parties, even after sufficient time, conclude they cannot continue as husband and wife. If mutual consent no longer exists at the final hearing, the section cannot be invoked to dissolve the marriage — the other remedies under the Act must be pursued instead.

The Court supported its position by reference to an authoritative exposition in Halsbury's Laws of England (para 645) and the cited decision in Beaks v. Beales, showing a recognized principle that consent must subsist to the date of decree.

Having articulated the law in favour of revocability up to decree, the Court addressed the procedural and binding effect of the earlier Single Judge decision in the same case. It observed that although the earlier decision's legal view may now be treated as unsound (and is overruled on the law), that earlier Single Judge order had become final between the parties because it was not challenged further by appeal (i.e., it was inter partes and final as between the parties). Consequently, the remand directed by the Single Judge was binding on the trial Court and on the parties; the trial Court complied with that direction, conducted the inquiry, and passed the decree.

Applying authorities on the finality and binding effect of inter partes orders (including Satyadhyan Ghosal v. Deorajin Debi and other decisions cited), the Division Bench concluded that the appellant was precluded from re‑litigating the point covered by the earlier remand order. In short:

The Court adopted the view that, as a matter of law, consent under section 13‑B must subsist up to the decree and is revocable before final disposal;
but as a matter of procedure and res judicata/finality between the parties, the earlier Single Judge remand order (inter partes and not appealed from) bound the appellant and therefore the trial Court's subsequent decree based on the mandated inquiry could not be set aside in the present appeal.

Holding and Implications

APPEAL DISMISSED.

Holding (core ruling):

The Division Bench held as a matter of law that consent to a petition under section 13‑B must subsist up to and including the moment when the decree is granted; either party may revoke consent any time before final disposal and, if consent is revoked, a decree under section 13‑B cannot be passed solely on the basis of the earlier joint petition.
Notwithstanding this legal position, the Court held that the earlier Single Judge remand order in F.A.O. No. 100‑M of 1985 was final and binding on the parties (as it was not challenged) and therefore precluded the appellant from re‑agitating the point in this appeal.

Immediate consequences for the parties:

The decree of divorce passed by the trial Court on 17 December 1985 in favour of the respondent (Nachhattar Singh) is upheld; the marriage is declared dissolved with effect from the date of that decree.
There is no order as to costs.

Implications on broader law: The Court's opinion articulates and affirms the legal principle that consent for a section 13‑B petition must subsist until the decree and is revocable prior to final disposal. However, the Court also emphasized that prior inter partes final orders remain binding on the parties — the present result turned on the binding effect of the earlier remand order rather than a mere affirmation of the non‑revocability principle in favour of one side. The opinion therefore clarifies the law on revocability while applying settled principles of finality to the facts before it.

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Harcharan Kaur v. Nachhattar Singh .

M.R Agnihotri, J.:— This first appeal has been filed by Smt. Harcharan Kaur wife of Nachhattar Singh against the decree of divorce granted in favour of husband Nachhattar Singh under sub-section (2) of section 13-B of the Hindu Marriage Act, 1955, by the learned Additional Senior Subordinate Judge, Jagraon, on 17th December, 1985.

2. Briefly stated, on 26th June, 1970, Nachhattar Singh son of Chanan Singh, resident of village Sudhar, Tehsil Jagraon, District Ludhiana, married Smt. Harcharan Kaur daughter of Nahar Singh, of village Raowal, Tehsil Jagraon, District Ludhiana, by solemnising the marriage by performing Anand Karj ceremony in village Raowal. The parties lived together for about thirteen years as husband and wife and out of this wedlock two children were born—son Hardeep Singh aged about 12½ years and daughter Mandeep Kaur aged about 4½ years

3. In December, 1982, relations between the husband and wife got strained and they started living separately with effect from January, 1983. Having lived separately for about one and a half years, they agreed to have their marriage dissolved by mutual consent, as a result whereof a petition under section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), for dissolution of marriage by a decree of divorce was presented by husband Nachhattar Singh and wife Harcharan Kaur together. The petition filed on 23rd July, 1984, came up before the Court for recording the statements of the parties on 24th July, 1984, After recording the statements of both the parties on the said date, the petition was adjourned to 28th January, 1985, to comply with the statutory requirement laid down in sub section (2) of section 13-B of the Act, that is, the mirriage can be dissolved not earlier than six months after the date of presentation of the petition.

4. Howver, on 28th January, 1985, Smt. Harcharan Kaur, the present appellant, failed to appear in the Court and was summoned again for 6th February, 1985. On the adjourned date of hearing, that is, on 6th February, 1985. the wife, Harcharan Kaur, made a statement in the Court that she did not want to divorce her husband and the petition for divorce submitted on 23rd July, 1984, be dismissed. Accordingly, acting upon the statement of Harcharan Kaur, the Court dismissed the petition on 6th February, 1985, obviously on the ground that one of the parties was not willing to dissolve the marriage by mutual consent.

5. Aggrieved by this order, Nachhattar Singh approached the High Court by filing F.A.O. No. 100-M of 1985. That appeal was allowed by the learned Single Judge of this Court on 9th September, 1985, vide his judgment reported as Nachhatar Singh v. Harcharan Kaur . 1986-1 89 PLR 24., whereby the order of the learned Additional Senior Subordinate Judge was set aside and the case was sent back for making inquiry as envisaged by sub-section (2) of Section 13-8 of the Act, and to decide thereafter the petition for divorce by mutual consent in accordance with law. The relevant portion of the judgment of the learned Single Judge is reproduced below:—

“The impugned order suffers from legal infirmity and is, therefore, unsustainable. Sub-sec (2) of S. 13-B of the Act is in the following terms:—

‘(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.’ A reading of this sub-section would show that the scheme of S. 13-B of the Act does not envisage withdrawal of consent by one party. The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such inquiries as it thinks fit, that the petition was in fact presented by both the parties to the marriage, that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily concented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in subsection (1) of S. 13-B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case, without making an inquiry under sub-sec. (2) the trial Court had dismissed the petition as withdrawn which could not be done merely on the asking of one party.”

6. In pursuance of the aforesaid order, the trial Court held the necessary inquiry and felt satisfied that the petition, in fact, was presented by both the parties as they had mutually agreed for dissolution of their marriage and that all the conditions mentioned in sub-section (7) of section 13-B of the Act were fulfilled in the present case. Consequently, the decree of divorce under subsection (2) of section 13-B ibid was passed by the learned Additional Senior Subordinate Judge declaring the marriage between the parties to be dissolved with effect from the 17th December, 1985, that is, the date of the decree.

7. Aggrieved against the above decree of divorce granted in favour of the husband, Nachhattar Singh, respondent, Smt. Harcharan Kaur has come up in appeal to this Court. At the time of admission of the appeal, it was brought to the notice of the Motion Bench that there were conflicting Singe Bench judgments regarding the question as to whether the parties had to give their consent both at the initial stage and also at the time when the matter was taken up finally for decision on the petition under section 13-B of the Act. In view of this, the appeal was admitted to Division Bench. In these circumstances, it has come up for hearing before us.

8. Before deciding the appeal on merits, endeavours were made for bringing about reconciliation between the parties for which they were summoned to be personally present in the Court, but the parties refused to reconcile as they were keen on contesting the litigation.

9. Mr. I.S Vimal, learned counsel for the appellant wife, has vehemently argued to contend that the view taken by the learned Single Judge in the earlier appeal on 9th September, 1985, deserved to be reconsidered as the same did not lay down the law correctly. According to the learned counsel, a petition under section 13-B could be withdrawn by either of the parties unilaterally and for that withdrawal a joint application or request by the husband and wife together was neither contemplated by the statute nor was possible in the nature of litigation. In support of his proposition, the learned counsel placed reliance on the following decisions in which this view has, of course, been taken by the learned Judge of various High Courts: Gurdip Singh Johar v. Kulwant Kaur . 1985 1 H.L.R 503. and Santosh Kumari v. Virendra Kumar . 1986 1 H.L.R 620 Raj..

10. On the other hand, Mr. G.S Punia, learned counsel appearing on behalf of the respondent husband Nachhattar Singh, has placed firm reliance on the earlier judgment of the learned Single Judge, between the parties: ((1986-1) 89 PLR 24. In support of the same, reference was made by Mr. Punia to the judgment reported as Nitin Ramnaik Lal Jhaveri v. Padmini Nitin Jhaveri . 1985 1 K.L.R 668 Bom., which in turn has placed reliance on an earlier judgment of the same High Court in Jayashrte Ramesh v. Ramesh Bhikaji . 1984 Mah. L.J 308 To the same view is the judgment of the Madhya Pradesh High Court reported as Meena Dutta v. Anirudh Dutta . 1985 1 H.L.R 280.. In. all these cases, the learned Judges have taken the view that once parties to the marriage has consented to prefer a petition for the dissolution of marriage by mutual consent, the said consent could not be withdrawn by either of the parties unilaterally.

11. With respect, we do not agree with the view taken by the learned Single Judge in this very case earlier (1986-1) 89 PLR 24, while sending the case back to the trial Court for inquiry, as also with the judgments of the Bombay and Madhya Pradesh High Courts referred to above. In our view, unless the parties to the petition under section 13-B of the Act, who have mutually consented to have the marriage dissolved, continue to signify their mutual consent for the dissolution of the marriage right upto the date of th decree, the marriage cannot be dissolved under sub-section (2) of section 13-B of the Act merely on the basis that six months earlier the parties has together presented the petition for dissolution of marriage by mutual consent. Either of the parties to the petition under section 13-B, that is, husband or wife, is at liberty to revoke its consent any time before the petition is finally disposed of; and if the other party is still keen to have the marriage dissolved, the other provisions of the Hindu Marriage Act are still available for the grant of necessary relief if a case is made out for the same. The object of section 13-B is to provide an additional speedy remedy to the husband and wife to have the marriage dissolved if even after sufficient afflux of time both of them find, that it is not possible for them to continue as husband and wife any further. Obviously, if both the parties agree, the decree of divorce can be granted by mutual consent under section 13-B and if one of them fails to agree and does not want to oblige the other party by extending the requisite consent to the divorce, decree of divorce cannot be passed under section 13-B of the Act. For that, other provisions of the Act would have to be resorted to.

12. In this regard, it would be helpful to refer to para 645 of Halsbury's Laws of England, Fourth Edition, Volume 13, at page 323, under the heading “Consent: revocability”, relevant part of which runs as under:

“The consent must continue to decree nisi and must be valid subsisting consent when the case is heard, remaining operative as the expression of the respondent's state of mind upto the moment when the decree is granted: Beaks v. Beales (1972) 2 All E.R 667, at page 674…”

13. Therefore, expressing our agreement with the judgments in Gurdip Singh Johar's case (supra) and Saniosh Kumari's case (supra) we hold that the view taken by the learned Single Judge earlier in this case (1936-1) 89 PLR 24 does not lay down the correct law and is hereby overruled

14. However, the fact remains that the aforesaid judgment of the learned Single Judge which was inter partes was not challenged by way of appeal etc. either before the Letters Patent Bench or before the Supreme Court, and as a result thereof the same became final and binding upon the parties. It would be wholly immaterial that the view taken by the learned Single Judge” ceased to hold the field and has been overruled. Even though it has ceased to be a good law, nevertheless it would be binding on the parties to the case especially when it was a remand order and in pursuance whereof the Court below has held the necessary inquiry and passed the decree keeping in view the directions issued by the learned Single Judge. For this purposition, the learned counsel for the respondent husband has placed reliance on the following judgments: Satyadhyan Ghosal v. Smt. Deorajin Debi . AIR 1960 SC 941.; Mt. Anarjia v. Tengari Kabar . AIR 1962 Patna 65.; Prabhu Halwai v. Fulchand Khandelwal . AIR 1969 Patna 16. and Sita Ram Goel v. Sukhnandi Dayal . 1971 3 SCC 488.

15. Consequently, we have no hestitation to hold that the errlier decision of the learned Single Judge in this very case in F.A.O. No. 100-M of 1985 ((1986-1) 89 PLR 24) precludes the appelllant from reagitating the point covered by that decision and is binding on the appellant. The learned trial Court has rightly granted the decree of divorce in favour of the respondent husband and the marriage between the parties rightly declared dissolved with effect from the date of the decree, that is, 17th December, 1985.

16. In the result, we dismiss the appeal. In the circumstances of the case, there is no order as to costs.

D.S Tewatia, J.:— I agree.

R.M.S

Appeal dismissed.

Harcharan Kaur v. Nachhattar Singh .

Structured Summary of the Court's Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Smt. Harcharan Kaur — represented by Mr. I.S. Vimal)

Respondent's Arguments (Nachhattar Singh — represented by Mr. G.S. Punia)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Harcharan Kaur v. Nachhattar Singh .

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