Case Note & Summary
The case involves an appeal by the mother and brothers of the deceased husband, Aniket, against an order of the Family Court refusing to allow them to be brought on record as legal heirs in a divorce by mutual consent petition under Section 13-B of the Hindu Marriage Act, 1955. Aniket and his wife, Shalaka, filed a joint petition for divorce by mutual consent on 14-10-2020, with Aniket paying Rs. 2,50,000 to Shalaka as part of a settlement. Aniket died on 15-04-2021 before the second motion under Section 13-B(2) could be moved. Shalaka then filed a purshis withdrawing her consent and seeking disposal of the petition. The appellants sought to be substituted as legal heirs and also sought a direction for Shalaka to re-deposit the amount received. The Family Court rejected both applications and disposed of the petition. The Bombay High Court upheld the Family Court's order, holding that the right to seek divorce is personal and does not survive to legal heirs. The court emphasized that the second motion is a condition precedent for a decree, and since no decree was passed, the wife was entitled to withdraw her consent. The court relied on Hitesh Bhatnagar v. Deepa Bhatnagar and Sureshta Devi v. Om Prakash to hold that consent can be withdrawn at any time before the decree. The court also rejected the argument of unjust enrichment, noting that the amount paid could be subject to separate proceedings. The appeal was dismissed.
Headnote
A) Hindu Law - Divorce by Mutual Consent - Survival of Right to Sue - Section 13-B, Hindu Marriage Act, 1955 - The right to seek divorce is a personal right and does not survive to legal heirs. The court held that since no decree of divorce was passed and the second motion under Section 13-B(2) was not made, the cause of action did not survive after the death of the husband. The mother and brothers could not be brought on record as legal heirs to continue the petition. (Paras 3, 12-14) B) Hindu Law - Divorce by Mutual Consent - Withdrawal of Consent - Section 13-B, Hindu Marriage Act, 1955 - A party can withdraw consent at any time before the decree of divorce is passed, even after the expiry of 18 months. The court relied on Hitesh Bhatnagar v. Deepa Bhatnagar and Sureshta Devi v. Om Prakash to hold that the wife's withdrawal of consent was valid and the petition was rightly disposed of. (Paras 9, 13-14) C) Hindu Law - Divorce by Mutual Consent - Unjust Enrichment - Section 13-B, Hindu Marriage Act, 1955 - The court rejected the argument of unjust enrichment, holding that since no decree was passed, the wife was entitled to withdraw consent and the amount paid by the husband could be subject to separate proceedings. The court did not direct re-deposit of the amount received by the wife. (Paras 5, 14)
Issue of Consideration
Whether the right to sue survives to the mother and brothers of the deceased husband in a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, when the husband dies before the second motion is moved.
Final Decision
The Bombay High Court dismissed the appeal, upholding the Family Court's order. The court held that the right to sue for divorce is personal and does not survive to legal heirs. The wife's withdrawal of consent was valid, and the petition was rightly disposed of. The application for re-deposit of money was also rejected, leaving it open for separate proceedings.
Law Points
- Right to sue for divorce is personal and does not survive to legal heirs
- Second motion under Section 13-B(2) is a condition precedent for decree of divorce
- Withdrawal of consent by one party before decree is permissible
- No unjust enrichment if consent withdrawn before decree
