Case Note & Summary
The appellant, Smruti Pahariya, challenged the judgment of the Bombay High Court which set aside the Family Court's decree of divorce granted on 5.12.2007. The couple, married on 5.3.1993, had two sons and stopped living together in January 2005 due to incompatibility. They filed a joint petition for divorce by mutual consent on 19.5.2007, which required a mandatory waiting period of six months as per Section 13B of the Hindu Marriage Act, 1955. The Family Court, however, granted an ex-parte divorce decree on 5.12.2007 without the husband's presence, leading to the appeal. The Supreme Court identified four key legal questions regarding procedural irregularities, the Family Court's adherence to its statutory obligations, and the necessity of mutual consent for divorce. The Court found that the Family Court had not properly ensured the husband's presence or consent, violating the principles of fairness and the requirements of the Family Courts Act. The Court emphasized that mutual consent must be present at the time of the decree and cannot be presumed from absence. Consequently, the Supreme Court set aside the divorce decree and directed the Family Court to issue notices for both parties to appear and confirm their consent for the divorce, ensuring a fair hearing process. The appeal was disposed of without costs.
Headnote
A) Family Law - Divorce by Mutual Consent - Procedural Irregularity - Hindu Marriage Act, 1955, Section 13B - The Family Court granted an ex-parte divorce decree without ensuring the presence and consent of both parties, violating procedural norms and the statutory obligation to ascertain mutual consent. Held that the decree was set aside due to these irregularities (Paras 15-16). B) Family Law - Jurisdictional Fact - Consent Requirement - Hindu Marriage Act, 1955, Section 13B - The court emphasized that mutual consent is a jurisdictional fact necessary for granting a divorce decree, and absence of one party cannot be presumed as consent. Held that the Family Court failed to ascertain the husband's consent before granting the decree (Paras 49-50).
Issue of Consideration
Whether the Family Court's decree of divorce was vitiated by procedural irregularity and whether it acted contrary to the Family Courts Act, 1984.
Final Decision
The Supreme Court set aside the ex-parte divorce decree granted by the Family Court on 5.12.2007, directing the Family Court to issue notices to both parties to ascertain their consent for the divorce under Section 13B of the Hindu Marriage Act, 1955.
Law Points
- mutual consent divorce
- procedural irregularity
- Family Courts Act
- 1984
- Section 13B
- substituted service
- jurisdictional fact
