The divorce provision in Hindu law provided that once the application for dissolution of marriage was presented before the competent court, either of the applicants could withdraw the consent within 18 months.
However, a Bench comprising Justices D K Jain and H L Dattu said even if husband or wife withdrew consent after 18 months but prior to passing of the decree, the court could not grant divorce.
“It is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for grant of divorce by mutual consent is free consent of both parties,” it said.
Justice Dattu, writing the judgment for the Bench, explained, “In other words, unless there is a complete agreement between husband and wife for dissolution of the marriage and unless the court is completely satisfied, it cannot grant decree for divorce by mutual consent. Otherwise, in our view, the expression ‘divorce by mutual consent’ would be otiose.”
Hitesh and Deepa, who were married in 1994 and had a girl child, made a joint application for divorce by mutual consent in August 2001. But Deepa withdrew her consent in March 2003 after a period of 18 months. The husband wanted the court to consider this as time-barred and grant him divorce. On the other hand, Deepa said she never wanted divorce and wanted to live with him.
After failing to convince the court about the time bar on withdrawal of consent by the wife, Hitesh told the Bench that the marriage had broken down irretrievably, both being estranged for the last 10 years.
The Bench turned down this plea too and said, “It is under extraordinary circumstances that this court is compelled to dissolve a marriage as having irretrievably broken down.”
It turned philosophical and said, “Marriages are made in heaven, or so it is said. But, we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with.”