withdrawal of consent on the second motion by wife does not amount to perjury
CRA No.S-2467-SB of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.S-2467-SB of 2012 (O&M) Date of decision: 09.10.2012 Gagan Sethi ....Appellant Versus Shilpa Sethi ....Respondent CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH Present: - Mr. H.S. Dhindsa, Advocate, for the appellant. ***** PARAMJEET SINGH, J.
Crl. Misc. No.50229 of 2012 For the reasons stated, application is allowed. Delay of 18 days in refiling the appeal is condoned.
Crl. Appeal No. S-2467-SB of 2012 The instant appeal has been filed against the order dated 26.05.2012 passed by learned Additional Sessions Judge, Ludhiana in an application underSection 195/340 Cr.P.C. moved in proceedings under Section 13-B of the Hindu Marriage Act (hereinafter called ‘the Act’).
Brief facts of the case are that the appellant and the respondent filed a petition under Section 13-B of Act for dissolution of marriage between the parties by way of mutual consent in the Court of learned District and Sessions Judge, Ludhiana, which was entrusted to the learned Additional District Judge. Before passing of the decree of divorce, respondent withdrew her consent and did not make a statement after the lapse of statutory period of six months for consent divorce CRA No.S-2467-SB of 2012 under Section 13-B of the Act. On that score, appellant filed an application under Section 195/340 Cr.P.C. for initiating proceedings against respondent – Shilpa Sethi for resiling from her statement made in the proceedings under Section 13-B of the Act at first motion. Learned Additional District Judge, Ludhiana, after appreciating the evidence, declined the application of the appellant under Section 195/340 Cr.P.C. Hence this appeal.
I have heard the learned counsel for the appellant and perused the record.
The learned counsel for the appellant was specifically asked how this appeal is maintainable against the order passed on an application under Section 195/340 Cr.P.C. Then the learned counsel for the appellant stated that this be treated as a petition under Section 482 Cr.P.C. Accordingly, the present appeal is treated as petition under Section 482 Cr.P.C.
Admittedly, petitioner and respondent have filed a petition under Section 13-B of the Act for dissolution of marriage between them by way of mutual consent. In this regard, even the statements of the parties were recorded on the first motion on 10.5.2010 and petition was adjourned to 15.11.2010 for cooling off the period of six months for recording the statements of the parties on the second motion. However, on the adjourned date, respondent made a statement that she was withdrawing her consent for mutual divorce and stated that she did not want to divorce and she had never entered into alleged compromise.
The learned counsel for the petitioner argued that respondent cannot withdraw her consent and it amounts to perjury on CRA No.S-2467-SB of 2012 behalf of the respondent.
I have considered the contention raised by the learned counsel for the petitioner.
It is to be seen whether consent once given during the proceedings under Section 13-B of the Act by either of the parties can be withdrawn at any stage or atleast before passing of the final decree of divorce. In the light of this, the following question arises for consideration of this Court:
“Whether withdrawal of consent on the second motion by wife amounts to making false statement and resiling from the statement amounts to cheating?”
In my opinion either of the parties can withdraw her/his consent given at the first motion in a proceeding under Section 13-B of the Act. The statutory cooling off period of six months is for that purpose so that parties may reconsider whether it is in their interest to go for mutual divorce. After considering the pros and cons either of the parties has option to withdraw the consent given at the first motion.
The specific period is granted with a purpose to the parties to think over the matter with regard to the mutual divorce. There is nothing specific in Section 13-B of the Act, which may compel either of the party to make a statement accepting the statement made at the first motion. There is no bar under any of the provisions of the Act debarring either of the parties to withdraw his/her consent. The parties can very well withdraw the mutual consent at any stage prior to the passing of the decree of divorce specifically when they come for second motion.
In the present case, respondent-wife has withdrawn the CRA No.S-2467-SB of 2012 consent at the second stage. The issue of withdrawal of consent at the second motion has been considered by the Hon’ble Supreme Court in the case of Sureshta Devi vs. Om Parkash (1991) 2 SCC 25 and it was held that a party can unilaterally withdraw the consent at any time till the passing of the decree of divorce.
The Hon’ble Supreme Court in para 13 in the case of Sureshta Devi (supra) has held as under: –
“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 a 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 CRA No.S-2467-SB of 2012 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 bona fides 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.”
Further the Hon’ble Supreme Court in the case of Hitesh Kumat Bhatnagar vs. Deepa Bhatnagar, 2011 (5) SCC 234 has also considered the issue whether the consent can be withdrawn and declared the law as under: –
“14. The language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any CRA No.S-2467-SB of 2012 time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.
15. In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen-month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant.”
In view of the above position, I do no find any ground to interfere with the impugned order passed by the learned Additional Sessions Judge, Ludhiana.
Dismissed in limine.
(Paramjeet Singh) Judge October 09, 2012 R.S.