# Smt. Poonam v. Rajiv Bariyani

- **Citation:** (2021) 6 ILRA 130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-03
- **Case number:** First Appeal No. 355 of 2017
- **Bench:** Bala Krishna Narayana, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-poonam-v-rajiv-bariyani-46167
- **Pages:** 5

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B - Family Courts Act, 1984 -
Section 19
- Matrimonial dispute
-
Divorce petition by mutual consent -
Consent subsequently withdrawn by one
party, effect thereof - 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withdrawn before a decree of divorce by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 - Held, when the
consent
by
one
of
the
parties
is
withdrawn, the Court cannot pass a
decree of divorce by mutual consent -
Order of the Court below affirmed. (Para
10 and 13)

First Appeal dismissed. (E-1)
Cases relied on :-

## Text

130 INDIAN LAW REPORTS ALLAHABAD SERIES
feelings and emotions of the parties.
However, aforesaid judgement shows that
since the ground that marriage has broken
down beyond repair or has become
irretrievable is not one of the ground on
which divorce can be granted under Section
13 of Act, 1955, therefore, Supreme Court
has exercised power under Article 142 of
Constitution of India which power is not
vested in this Court. Hence, second point is
also answered against appellant.

38. No other point has been argued.

39. Appeal lacks merit. Dismissed
with costs.
----------
(2021)06ILR A130
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2020

BEFORE

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

First Appeal No. 355 of 2017

Smt. Poonam ...Appellant
Versus
Rajiv Bariyani ...Respondent

Counsel for the Appellant:
Sri Santosh Kumar Srivastava

Counsel for the Opp. Party:
Sri Harindra Prasad

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B - Family Courts Act, 1984 -
Section 19
- Matrimonial dispute
-
Divorce petition by mutual consent -
Consent subsequently withdrawn by one
party, effect thereof - 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withdrawn before a decree of divorce by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 - Held, when the
consent
by
one
of
the
parties
is
withdrawn, the Court cannot pass a
decree of divorce by mutual consent -
Order of the Court below affirmed. (Para
10 and 13)

First Appeal dismissed. (E-1)
Cases relied on :-
1. Smt. Sureshta Devi Vs Om Prakash reported
in (1991) 2 SCC 25
2. Smruti Pahariya Vs Sanjay Pahariya, reported
in (2009) 13 SCC 338

(Delivered by Hon'ble Bala Krishna
Narayana, J. & Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the
appellant and Sri Harindra Prasad, learned
counsel for the sole respondent.

2. This first appeal has been filed by the
appellant Smt. Poonam against the judgement
and order dated 28.1.2017 passed by Family
Court, Gorakhpur, by which Case No. 458 of
2014 (Rajiv Bariyani vs. Smt. Poonam) under
Section 13-B of Hindu Marriage Act, 1955
(hereinafter referred to as the "Act"), has
been dismissed on the ground that the
respondent Rajiv Bariyani has withdrawn his
consent.

3. It is contended by learned counsel for
the appellant that since the parties have been
living separately for the past seven years and
the respondent, after giving his consent to
divorce by mutual consent, had withdrawn
the same after two and a half years, the
Family Judge was not at all legally justified
in dismissing the Case No. 458 of 2014
(Rajiv Bariyani vs. Smt. Poonam).

4. Per contra, Sri Harindra Prasad,
learned counsel for the sole respondent by
6 All. Smt. Poonam Vs. Rajiv Bariyani
131
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.

5. We have heard learned counsel for
the parties.

6. 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.

7. 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.

Section 13B in The Hindu Marriage
Act, 1955

13B. 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.]

8. 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.

9. 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.

10. There is nothing in Section 13-B
of the Act which may indicate that the
132 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

11. 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 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
6 All. Smt. Poonam Vs. Rajiv Bariyani
133
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.

12. 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 :-

"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 13-B (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.

13. 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 in a
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 dismissing the Case
No. 458 of 2014 (Rajiv Bariyani vs. Smt.
Poonam).
134 INDIAN LAW REPORTS ALLAHABAD SERIES

14. This appeal lacks merit and is
accordingly dismissed.
----------
(2021)06ILR A134
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

First Appeal 381 of 2018

Sresth Singh & Anr. ...Appellants
Versus
Virendra Kumar Singh & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Vinay Kumar Khare, Sri Sharvesh Kumar
Pandey

Counsel for the Respondents:
Sri Vinod Singh

A. Civil Procedure Code,1908 - O. XXI R.
97 and 11 - Decree on the basis of
compromise - Execution of decree -
Obstructions caused severally - Gross
abuse of process of Court - Exemplary
cost, when can be imposed - Successive
objections by the father, then by the
mother, and thereafter by the son and
daughter to obstruct the execution, which
were rejected up to High Court - Held,
while rejecting the objection the Court
below lawfully recorded a finding of abuse
of process of Court for moving the
application malafidely under Order XXI
Rules 97 and 101 C.P.C. so as to frustrate
the execution of decree - Exemplary cost
imposed on the appellants. (Para 10, 12
and 13)
First Appeal dismissed. (E-1)
Cases relied on :-
1. Punjab State Power Corporation Ltd. Vs Atma
Singh Grewal; (2014) 13 SCC 666
2. Dnyandeo Sabaji Naik Vs Pradnya Prakash
Khadekar; (2017) 5 SCC 496
3. Haryana State Co-op. L&C Federation Ltd. Vs
Unique Co-op. L&C Co-op. Society Ltd.; (2018)
14 SCC 248

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Sharvesh Kumar Pandey
holding brief of Sri Vinay Kumar Khare,
learned counsel for the objector/appellants
and Sri Vinod Singh, learned counsel for
decree holder/respondent No.1.

2.

Learned
counsel
for
the
objector/appellants submits as under:-

(i)
Execution
Application
being
Execution Case No.1 of 2012 was not
maintainable since there was no decree for
eviction of the objector-appellants herein.

(ii) Appellants are occupying the
disputed portion of the house since their
birth.

(iii) Appellants have inherited the
property as a Joint Hindu Property, as they
are grand children of Shobha Singh who
has three sons, namely, Virendra Singh,
Amit Singh and Anil Kumar Singh. The
appellants are son and daughter of Amit
Singh.

(iv) A suit for permanent injunction
being Original Suit No.136 of 2000 (Anil
Kumar Singh Vs. Shobha Singh and others)
was filed in which a compromise decree
was passed on 28.08.2003 whereby each
son of Shobha Singh, namely, Virendra
Singh, Amit Singh and Anil Kumar Singh
(Adopted son) each were given 1/3rd share.
At the time of aforesaid decree the
appellants were minor. They were not party
to the compromise decree. Therefore, they
lawfully filed objection in Execution Case
No.1 of 2012 under Order XXI Rule 97 and