# Prabhat Singh v. Smt. Sweta Yadav

- **Citation:** (2020) 6 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-06
- **Case number:** First Appeal No. 199 of 2017
- **Bench:** Bala Krishna Narayana, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhat-singh-v-smt-sweta-yadav-45814
- **Pages:** 6

## Headnote

Sri Anil Kumar, Sri Arvind Srivastava, Sri
Kandarp
Srivastava,
Sri
Kaustubh
Srivastava

A. Consent given for divorce-Respondent wife
has withdrawn consent for mutual divorce-before
passing of decree- mutual consent-can be withdrawn
by one of the parties -before a Court grants decree of
divorce-when consent of one party is withdrawnCourt cannot grant decree of divorce by mutual
consent-impugned order legal.

First Appeal dismissed. (E-9)

List of cases cited:-

## Text

28 INDIAN LAW REPORTS ALLAHABAD SERIES
Notional Income
5,000/- p.m.
Rs. 60,000/-
p.a.
Future Prospects

40% of Rs. 60000/-
Rs. 24,000/-
Total Income

Rs. 84,000/-
Deduction towards
personal expenses
1/5th of total
income
Rs. 16,800/-
Dependency
84,000-16,800
Rs. 67,200/-
Multiplier

16
Compensation
67,200/- x 16
Rs. 10,75,200/-
Loss of Consortium

Rs. 40,000/-
Funeral Expenses

Rs. 15,000/-
Loss of Estate

Rs. 15,000/-
Total
Compensation

Rs. 11,45,200/-

34. Thus, the compensation awarded
by the Court below is enhanced from
3,45,000/- to Rs. 11,45,200/- with simple
interest @ of 7% per annum from the date
of presentation of the application.

35. In view of the above, the appeal
stands allowed. The compensation awarded
to the claimants/appellants under the order
of
the
Tribunal
dated
19.8.2010
is
accordingly enhanced and award stands
modified to the extent indicated herein
above.
----------
(2020)06ILR A28
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE SHAMIM AHMED, J.

First Appeal No. 199 of 2017

Prabhat Singh ...Appellant
Versus
Smt. Sweta Yadav ...Respondent

Counsel for the Appellant:
Sri Sandeep Saxena, Sri Ajay Kumar Rai,
Sri Dileep Chandra Mishra, Sri Samarth
Krishna

Counsel for the Respondent:
Sri Anil Kumar, Sri Arvind Srivastava, Sri
Kandarp
Srivastava,
Sri
Kaustubh
Srivastava

A. Consent given for divorce-Respondent wife
has withdrawn consent for mutual divorce-before
passing of decree- mutual consent-can be withdrawn
by one of the parties -before a Court grants decree of
divorce-when consent of one party is withdrawnCourt cannot grant decree of divorce by mutual
consent-impugned order legal.

First Appeal dismissed. (E-9)

List of cases cited:-

1. Smt. Sureshta Devi vs. Om Prakash reported in
1991 2 SCC 25

2. Smruti Pahariya v. Sanjay Pahariya, 2009 13 SCC
338

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the appellant
and learned counsel for the sole respondent.

2. This first appeal has been filed by the
appellant Prabhat Singh against the judgement
and order dated 15.03.2017 passed by Principal
Judge, Family Court, Ghaziabad in Petition
No.392 of 2017 (Smt. Shweta Yadav Vs.
Prabhat Singh), under Section 13-B of Hindu
Marriage Act, 1955 (hereinafter referred to as
the "Act"), by which the court below has
directed the appellant to return the custody of
minor child and referred the petition under
Section 13-B of the Act to the mediation center
on the ground that the respondent-Smt. Shweta
Yadav has withdrawn her consent for divorce
by
mutual
consent.
6 All. Prabhat Singh Vs. Smt. Sweta Yadav
29

3. It is argued by the learned counsel
for the appellant that the marriage of the
appellant
was
solemnized
with
the
respondent-Smt.
Shweta
Yadav
on
05.12.2011 and out of the aforesaid
wedlock
a
daughter
was
born
on
21.07.2014 and she has separated from the
appellant
on
21.06.2015
and
living
separately.

4. Learned counsel for the appellant
further argued that the appellant found it
impossible to live without his daughter,
hence he pleaded for return of his wife
(respondent) but she filed a divorce petition
bearing No.1122 of 2015, under Section 13
of the Act in Family Court, Ghaziabad, the
respondent never allowed the appellant to
meet his daughter which made his life
miserable and pathetic.

5. It was further argued by the learned
counsel
for
the
appellant
that
the
respondent-Smt. Shweta Yadav agreed to
give the custody of the minor child to the
appellant on the ground that the appellant
shall agree for filing a joint petition under
Section 13-B of the Act and return the
jewelry as demanded by respondent-Smt.
Shweta Yadav, the appellant fell in the trap
of the respondent-Smt. Shweta Yadav out
of the love and affection of his daughter
and agreed to file a joint divorce petition
under Section 13-B of the Act in the Family
Court, Ghaziabad. The divorce petition was
filed on 02.03.2017 and numbered as 392
of 2017. The statement of the parties were
also recorded at the time of first motion of
the divorce petition and the custody of the
minor daughter was handed over to the
appellant on the same day i.e. 02.03.2017.

6. Learned counsel for the appellant
submits that the respondent-Smt. Shweta Yadav
had moved an application dated 06.03.2017 in
the divorce petition filed under Section 13-B of
the Act along with an affidavit alleging therein
that she cannot meet her minor daughter, hence
she wants the custody of the minor daughter
and she also mentioned that she is withdrawing
her consent.

7. Learned counsel for the appellant
further submits that the action of the
respondent-Smt. Shweta Yadav in withdrawing
her consent without any valid reason once she
has given the consent for divorce by mutual
consent was totally against the law, but the
Principal Judge, Family Court, Ghaziabad
without passing the decree of divorce vide order
dated 15.03.2017 directed the appellant to
return the custody of minor daughter within 24
hours and refer the Case no.392 of 2017, under
Section 13-B of the Act to the mediation center,
therefore, the order dated 15.03.2017 appears to
be wrong and against the provisions of Section
13-B of the Act, as such is liable to be quashed.

8. Per contra, learned counsel for the sole
respondent by placing reliance upon a
judgement rendered by the Apex Court in Smt.
Sureshta Devi vs. Om Prakash reported in
1991 2 SCC 25 submitted that consent can be
withdrawn by one of the parties any time before
the Court passes a decree of divorce by mutual
consent.

9. We have heard learned counsel for the
parties.

10. Since the facts of this case are not
in dispute, with the consent of the learned
counsel for the parties, we are deciding this
appeal finally at the admission stage itself
as per the High Court Rules.

11. In order to appreciate the
submissions made by learned counsel for
the parties, it would be useful to extract
Section
13-B
of
the
Act.
30 INDIAN LAW REPORTS ALLAHABAD SERIES

Section 13B in The Hindu
Marriage Act, 1955

13-B. Divorce by mutual consent

(1) Subject to the provisions of
this Act a petition for dissolution of
marriage by a decree of divorce may be
presented to the district court by both the
parties to a marriage together, whether
such marriage was solemnised before or
after the commencement of the Marriage
Laws (Amendment) Act, 1976 (68 of
1976)*, on the ground that they have been
living separately for a period of one year
or more, that they have not been able to
live together and that they have mutually
agreed that the marriage should be
dissolved.

(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 solemnised 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.]

12. Even the most superficial reading
of sub-section (1) Section 13-B of the Act
indicates that subject to the provisions of
the Act, a petition for dissolution of
marriage by a decree of divorce may be
presented to the district court by both the
parties to a marriage together, on the
ground
that
they
have
been
living
separately for a period of one year or more,
that they have not been able to live together
and that they have mutually agreed that the
marriage should be dissolved.

13. Sub-section (2) of Section 13-B of
the Act further stipulates that 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 18 months after the said
date and 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.

14. There is nothing in Section 13-B
of the Act which may indicate that the
consent once given by either of the parties
to a petition for divorce by mutual consent,
cannot be withdrawn before a decree of
divorce by mutual consent is passed.

15. Section 13-B of the Act was
examined by the Apex Court in the case of
Smt. Sureshta Devi (supra). Paragraph
nos. 9, 10 and 13 of the aforesaid
judgement which are relevant for our
purpose
are
being
reproduced
hereinbelow:-

"9. The `living separately' for a
period of one year should be immediately
preceding the presentation of the petition. It
is necessary that immediately preceding the
presentation of petition, the parties must
have been living separately. The expression
`living separately', connotes to our mind
not living like husband and wife. It has no
reference to the place of living. The parties
may live under the same roof by force of
circumstances, and yet they may not be
living as husband and wife. The parties
may be living in different houses and yet
they could live as husband and wife. What
6 All. Prabhat Singh Vs. Smt. Sweta Yadav
31
seems to be necessary is that they have no
desire to perform marital obligations and
with that mental attitude they have been
living separately for a period of one year
immediately preceding the presentation of
the petition. The second requirement that
they `have not been able to live together'
seems to indicate the concept of broken
down marriage and it would not be possible
to
reconcile
themselves.
The
third
requirement is that they have mutually
agreed that the marriage should be
dissolved.

10. Under sub-section (2) the
parties are required to make a joint motion
not earlier than six months after the date of
presentation of the petition and not later
than 18 months after the said date. This
motion enables the court to proceed with
the case in order to satisfy itself about the
genuineness of the averments in the
petition and also to find out whether the
consent was not obtained by force, fraud or
undue influence. The court may make such
inquiry as it thinks fit including the hearing
or examination of the parties for the
purpose of satisfying itself whether the
averments in the petition are true. If the
court is satisfied that the consent of parties
was not obtained by force, fraud or undue
influence and they have mutually agreed
that the marriage should be dissolved, it
must pass a decree of divorce."

13. From the analysis of the
Section, it will be apparent that the filing of
the petition with mutual consent does not
authorise the court to make a decree for
divorce. There is a period of waiting from 6
to 18 months. This interregnum was
obviously intended to give time and
opportunity to the parties to reflect on their
move and seek advice from relations and
friends. In this transitional period one of
the parties may have a second thought and
change the mind not to proceed with the
petition. The spouse may not be party to the
joint motion under sub-section (2). There is
nothing in the Section which prevents such
course. The Section does not provide that if
there is a change of mind it should not be
by one party alone, but by both. The High
Courts of Bombay and Delhi have
proceeded on the ground that the crucial
time for giving mutual consent for divorce
is the time of filing the petition and not the
time when they subsequently move for
divorce decree. This approach appears to be
untenable. At the time of the petition by
mutual consent, the parties are not unaware
that their petition does not by itself snap
marital ties. They know that they have to
take a further step to snap marital ties. Sub-
section (2) of Section 13-B is clear on this
point. It provides that "on the motion of
both the parties .... if the petition is not
withdrawn in the meantime, the Court shall
pass a decree of divorce What is significant
in this provision is that there should also be
mutual consent when they move the court
with a request to pass a decree of divorce.
Secondly, the Court shall be satisfied about
the bonafides and the consent of the parties.
If there is no mutual consent at the time of
the enquiry, the court gets no jurisdiction to
make a decree for divorce. If the view is
otherwise, the Court could make an enquiry
and pass a divorce decree even at the
instance of one of the parties and against
the consent of the other. Such a decree
cannot be regarded as decree by mutual
consent.

16. A Bench of three learned Judges
of the Hon'ble Apex Court in the case of
Smruti Pahariya v. Sanjay Pahariya,
reported in 2009 13 SCC 338 while
approving the ratio laid down in the case of
Smt. Sureshta Devi (supra), took the
following
view
:-
32 INDIAN LAW REPORTS ALLAHABAD SERIES

"40. In the Constitution Bench,
decision of this Court in Rupa Ashok Hurra
(supra), this Court did not express any view
contrary to the views of this Court in
Sureshta Devi (supra). We endorse the
views taken by this Court in Sureshta Devi
(supra) as we find that on a proper
construction of the provision in Section 13B (1) and 13-B (2), there is no scope of
doubting the views taken in Shreshta Devi
(supra). In fact the decision which was
rendered by the two learned Judges of this
Court in Ashok Hurra (supra) has to be
treated to be one rendered in the facts of
that case and it is also clear by the
observations of the learned Judges in that
case.

41. None of the counsel for the
parties argued for reconsideration of the
ratio in Sureshta Devi (supra).

42. We are of the view that it is
only on the continued mutual consent of the
parties that decree for divorce under
Section 13-B of the said Act can be passed
by the Court. If petition for divorce is not
formally withdrawn and is kept pending
then on the date when the Court grants the
decree, the Court has a statutory obligation
to hear the parties to ascertain their
consent. From the absence of one of the
parties for two to three days, the Court
cannot presume his/her consent as has been
done by the learned Family Court Judge in
the instant case and especially in its facts
situation, discussed above.

43. In our view it is only the
mutual consent of the parties which gives
the Court the jurisdiction to pass a decree
for divorce under Section 13-B. So in cases
under Section 13-B, mutual consent of the
parties is a jurisdictional fact. The Court
while passing its decree under Section 13-B
would be slow and circumspect before it
can
infer
the
existence
of
such
jurisdictional fact. The Court has to be
satisfied about the existence of mutual
consent between the parties on some
tangible materials which demonstrably
disclose such consent.

17. We have gone through the order
passed by the Principal Judge, Family
Court, Ghaziabad and the case law referred
above and after giving due consideration to
the issue involved. Under the traditional
Hindu Law, as it stood prior to the statutory
law on the point, marriage is a sacrament
and cannot be dissolved by consent. The
Act enabled the court to dissolve marriage
on
statutory
grounds.
By
way
of
amendment in the year 1976, the concept of
divorce by mutual consent was introduced.
However, Section 13B(2)contains a bar to
divorce being granted before six months of
time elapsing after filing of the divorce
petition by mutual consent. The said period
was laid down to enable the parties to have
a rethink so that the court grants divorce by
mutual consent only if there is no chance
for reconciliation.

18. The object of the provision is to
enable the parties to dissolve a marriage by
consent if the marriage has irretrievably
broken down and to enable them to
rehabilitate them as per available options.
The amendment was inspired by the
thought that forcible perpetuation of status
of matrimony between unwilling partners
did not serve any purpose. The object of the
cooling off period is a safeguard against a
hasty decision if there was otherwise
possibility of differences being reconciled.
The object
is
not
to
perpetuate
a
purposeless marriage or to prolong the
agony of the parties when there is no
chance of reconciliation. Though every
effort has to be made to save a marriage, if
there are no chances of reunion and there
are chances of fresh rehabilitation, the
6 All. M/s Kesharwani Sheetalaya Vs. Commissioner of Income Tax, Allahabad
33
Court should not be powerless in enabling
the parties to have a better option.

19. In determining the question
whether
provision
is
mandatory
or
directory, language alone is not always
decisive. The Court has to have the regard
to the context, the subject matter and the
object of the provision.

20. The study of numerous cases
on
this
topic
does
not
lead
to
formulation of any universal rule except
this that language alone most often is
not decisive, and regard must be had to
the context, subject-matter and object of
the statutory provision in question, in
determining
whether
the
same
is
mandatory or directory. In an oft-quoted
passage
Lord Campbell
said:
''No
universal rule can be laid down as to
whether mandatory enactments shall be
considered directory only or obligatory
with
an
implied
nullification
for
disobedience. It is the duty of courts of
justice to try to get at the real intention
of the legislature by carefully attending
to the whole scope of the statute to be
considered.'

21. Thus, in view of the ratio laid
down in the case of Smt. Sureshta Devi
(supra), we do not find that the Court
below committed any illegality or legal
infirmity in holding that consent given for
divorce
by
mutual
consent
can
be
withdrawn by one of the parties before a
Court grants a decree of divorce by mutual
consent and when the consent by one of the
parties is withdrawn, the Court cannot pass
a decree of divorce by mutual consent.
Since in this case the respondent has
withdrawn his consent before the passing
of a decree of divorce by mutual consent,
we do not find that the Court below
committed any error in passing the order
dated 15.03.2017 in Case No.392 of 2017
(Smt. Shweta Yadav Vs. Prabhat Singh).

22. This appeal lacks merit and is
accordingly dismissed.
----------
(2020)06ILR A33
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2020

BEFORE

THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Income Tax Appeal No. 17 of 2007

M/s Kesharwani Sheetalaya ...Appellant
Versus
Commissioner of Income Tax, Allahabad
 ...Respondent

Counsel for the Appellant:
Sri R.R. Agarwal, Sri Umesh Chandra
Kesarwani, Sri Krishna Agarwal, Sri Pawan
Shree Agarwal, Sri Nikhil Agarwal, Sri
Suyash Agarwal

Counsel for the Respondent:
S.S.C.I.T., Sri Krishna Agarawal, Sri A.N.
Mahajan, Sri B.J. Agarwal, Sri Manu
Ghildyal

Tax Law - Unexplained Cash Credits -
Income Tax Act, 1961: Section 68,
143(2)/142(1), 143(3) - where the sum
is credited in the book of accounts of a
firm from a partner, the assessee have
to
prove
the
genuineness
of
the
transaction
and
identity
and
credit
worthiness of the creditor. Once the
assessee proves all the three things its
onus is discharged. The assessee only
needs to prove the source of credit
entries and he is not required to prove
the source of source of the creditors'
credit.
(Para
30)