Spouse’s consent for divorce must continue till end of marriage, says HC

HC was hearing a plea against a lower court order. A woman had appealed before the district judge in Kolhapur against a decree of divorce granted by a trial court in October 2005.

The Bombay high court (HC) recently held that consent of a spouse for divorce by mutual consent shall be genuine and must continue till the date divorce is granted.

A woman had appealed before the district judge in Kolhapur against a decree of divorce granted by a trial court in October 2005. (Bhushan Koyande/HTPhotos)

Justice Anuja Prabhudessai said that a petition for divorce by mutual consent that invokes provisions of the Hindu Marriage Act is required to be filed by the spouses jointly and has to meet three basic requirements. She said that spouses should have lived separately for a year or more before filing the application, they should not have been able to live together and they should mutually agree that the marriage is to be dissolved.

HC was hearing a plea against a lower court order. A woman had appealed before the district judge in Kolhapur against a decree of divorce granted by a trial court in October 2005. She contended that the divorce petition was filed without her consent and that the trial court dissolved the marriage without ascertaining the plea’s averments or genuineness of her consent.

In October 2014, the district judge struck down the trial court’s decree. Following this, the woman’s husband approached HC, stating that the woman had given consent for divorce but remained absent during trial court proceedings.

Last week, justice Prabhudessai upheld the district court order. She said the trial court had proceeded on the assumption that consent, once given, was irrevocable. “Suffice it to say that [the trial court’s] view is not sustainable...consent should continue as on the date of the decree.”

The HC bench took note of provisions of the Hindu Marriage Act that casts a statutory duty on the family court to ascertain genuineness of the averments in the petition, existence of mutual consent, and that consent has not been obtained by force, fraud or undue influence.