Ms. Nandini Sen Mr. Basab Sengupta, Advs v. CAPT TEGHJEET SINGH MALHOTRA AND ANR on 24 Sep 2025

Judgment

1. The present matrimonial appeal impugns the Judgment and Decree dated 18.07.2024 1 passed by the learned Family Court, Patiala House Courts, New Delhi2, in HMA No. 211/2019 (filed by Respondent No. 1 - the Husband) and HMA No. 596/2019 (filed by the Appellant - the Wife). By the Impugned Judgment, the learned Family Court, instead of adjudicating the respective petitions on their merits, proceeded to dissolve the marriage between the parties by pronouncing a decree of divorce suo motu under Section 13B of the 1 Impugned Judgement 2 Family Court Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 1 of 30 Hindu Marriage Act, 19553. 2. HMA No. 211/2019 was filed by Respondent No. 1 seeking divorce on the ground of cruelty under Section 13(1)(ia) of the HMA. HMA No. 596/2019 was filed by the Appellant seeking divorce on the grounds of adultery and cruelty under Sections 13(1)(i) and 13(1)(ia) of the HMA. BRIEF FACTS: 3. Shorn of unnecessary details, the material facts germane to the present appeal are as follows: (a) The marriage between the Appellant and Respondent No. 1 was solemnized on 06.06.1992 in accordance with Hindu rites and ceremonies. (b) Out of wedlock, the couple was blessed with two children - a son, born on 10.09.1994, and a daughter, born on 29.10.1996. (c) For a considerable period, the couple shared a cordial and harmonious married life. However, around 2015-2016, their relationship began to deteriorate. (d) The Appellant alleges that Respondent No. 1, employed as a pilot with Saudi Arabian Airlines, entered into an adulterous relationship with Respondent No. 2, an air hostess in the same airline. This alleged adulterous liaison is asserted to be the root cause of estrangement between the parties, resulting in Respondent No. 1 distancing himself from the Appellant physically, mentally, and emotionally. (e) The marital discord culminated in 2018 when Respondent No. 1 caused a legal notice to be issued, proposing divorce by mutual 3 HMA Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 2 of 30 consent. The Appellant, however, rejected such proposal in her reply. (f) In February 2019, Respondent No. 1 instituted HMA No. 211/2019 under Section 13(1)(ia) of the HMA, seeking divorce on the ground of cruelty against the Appellant. (g) In June 2019, the Appellant, in turn, filed HMA No. 596/2019 under Sections 13(1)(i) and 13(1)(ia) of the HMA, seeking divorce on the grounds of adultery and cruelty, while also impleading Respondent No. 2 here as a co-respondent/ alleged adulterer. (h) Vide separate orders dated 08.12.2022, the learned Family Court framed issues in both petitions. (i) After framing of issues, both divorce petitions were clubbed for the purpose of recording evidence. (j) Upon the conclusion of the evidence, both petitions were heard together. However, instead of adjudicating the issues on merits, and in the absence of any joint petition or motion under Section 13B of the HMA, the learned Family Court, by the Impugned Judgment dated 18.07.2024, suo motu dissolved the marriage between the Appellant and Respondent No. 1 under Section 13B. (k) Aggrieved by the Impugned Judgment, the Appellant initially sought to file an appeal before this Court. During scrutiny, however, the Registry pointed out that such an appeal, assailing a decree passed under Section 13B of the HMA, was not maintainable in view of Section 19(2) of the Family Courts Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 3 of 30 Act, 19844. (l) The Appellant thereafter invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India5. A learned Single Judge, by order dated 27.03.2025, after noting the unusual circumstances of the case, directed that the said petition be treated and registered as a matrimonial appeal. The relevant portion of the order reads as under: :

―11. Appeal under Section 19 of Family Courts Act, 1984 would be barred if the decree or order has been passed by a Family Court with the consent of the parties.

12. Admittedly, in the case in hand, there is no express or direct or even implied consent from any of the parties whereby they both had expressed dissolution of their marriage by way of mutual consent under Section 13B of Hindu Marriage Act.

13. In such a situation, it cannot be said that filing of Matrimonial Appeal was prohibited in any manner whatsoever.

14. Learned counsel for petitioner, however, submits that the petitioner had, earlier, sought to prefer a matrimonial appeal under Section 28 of Hindu Marriage Act, which was even given diary No. as 4395539/2024 but since he was apprised by the Registry that qua decree passed under Section 13B of Hindu Marriage Act, the appeal was not maintainable, the present petition has been filed under Article 227 of Constitution of India.

15. Clearly, since there is no decree based on any express and mutual consent of the parties, the present petition is directed to be registered as a Matrimonial Appeal and subject to the order of Hon'ble the Chief Justice, such appeal be placed for consideration before the learned Roster Bench on 07.04.2025.‖ (m) Pursuant to the aforesaid order of the learned Single Judge, the present matrimonial appeal has been duly registered for adjudication. 4 FC Act 5 Constitution Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 4 of 30 CONTENTION OF THE PARTIES: 4. Learned Counsel for the Appellant would contend that the learned Family Court committed a grave and manifest illegality, in suo motu converting the divorce petitions filed under Section 13 of the HMA, into a Petition for divorce under Section 13B, and such action was wholly impermissible in law. 5. It would be submitted by the learned Counsel for the Appellant that the very foundation of a decree under Section 13B of the Act is the explicit, conscious, and simultaneous consent of both parties, which is demonstrated through a joint petition and a subsequent motion affirming such consent, but in the present case, the parties had filed separate and adversarial petitions under Section 13 of the HMA containing serious allegations of cruelty and adultery, and hence the requirement of mutuality was absent. 6. Learned Counsel for the Appellant would argue that there was never any joint petition, nor was any application ever made by either party to convert the proceedings into one under Section 13B, and therefore such a conversion into a Petition under Section 13B of the HMA by the learned Family Court lacked jurisdictional basis and stood as a nullity in law. 7. Learned Counsel for the Appellant would further contend that although specific issues had been framed on the basis of the pleadings and evidence, the learned Family Court returned no findings on any of the issues raised therein, and instead decided the matter invoking Section 13B, and such a procedure was unsanctioned by the law and on grounds that were neither pleaded or argued, nor framed as an issue, and such omission to decide the framed issues constituted a Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 5 of 30 serious legal error. 8. Learned Counsel for the Appellant would also submit that the reliance placed by the learned Family Court on Sections 9 and 10 of the FC Act, was wholly misplaced. It would further be submitted that Section 9 merely obliges the Court to attempt reconciliation and the learned Family Court itself had recorded that reconciliation was impossible, and while Section 10(3) grants procedural flexibility, it cannot be construed as a license to override the substantive provisions of the HMA, for the power to frame procedure cannot be construed as a power to bypass mandatory statutory requirements. 9. Per contra, learned Counsel for Respondent No. 1 would contend that the learned Family Court rightly identified that all substantive ingredients of Section 13B of the HMA were satisfied, and though no joint petition was filed, the long-standing conduct of the parties in persistently seeking divorce clearly established their mutual agreement, and the requirement of a joint petition was merely procedural, which the learned Family Court could overlook to do substantial justice. 10. It would further be contended by the learned Counsel for Respondent No. 1 that Sections 10(3) and 20 of the FC Act conferred wide discretionary powers on the Court to lay down its own procedure, and since these provisions are intended to free Family Courts from the technical rigours of the Code of Civil Procedure, 1908, the Court was empowered to adopt a flexible and non- adversarial approach, as emphasized by the Statement of Objects and Reasons of the FC Act. 11. Learned Counsel for Respondent No. 1 would submit that, in the peculiar facts where two cross-petitions for divorce had remained Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 6 of 30 pending for over five years and where both parties consistently expressed their desire to end the marriage, the learned Family Court rightly exercised its discretion to grant a decree under Section 13B of the HMA, and in doing so, it advanced the true spirit and purpose of the HMA and the FC Act. ANALYSIS: 12. We have, with the valuable assistance of the learned counsel for both parties, carefully examined the pleadings along with the documents placed on record and considered in detail the reasoning contained in the Impugned Judgment. 13. At the very outset, it is pertinent to note that both learned counsel for the parties are ad idem that the present matter involves the determination of a pure question of law. We concur with the same. 14. At this stage, it would be appropriate to reproduce the reasoning adopted by the learned Family Court in the Impugned Judgment, since it forms the very foundation of the present challenge. The relevant portion reads as follows: “11. After hearing final arguments, both files perused. Wife's willingness to come out of the marriage by dissolution of marriage is pending since 06.06.2019 when she filed her petition. Husband's willingness to dissolve the marriage is also continuously pending since 21.02.2019 when he filed his petition. Yet both parties are unable to get off the marriage because neither party agreed to act in accordance with provision of Section 13B of the HMA nor court attempted to explore the probability of application of Section 13B of the HMA on its own in the facts and circumstances existing between the parties. Though both are willing to break their matrimonial ties permanently at least since 06.06.2019 but even at the fag end of the trial/case, they could not agree till date for divorce by mutual consent for reasons best known to them.

12. This has prompted this Court to wonder if the respective willingness of the parties or prayer of the parties to dissolve their marriage would not amount to mutual consent to dissolve their Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 7 of 30 marriage and if their marriage could be dissolved without going into merits of the respective allegations of the parties.

13. After perusing Section 13-B of the HMA, this court finds that except for the form all other ingredients required under Section 13-B of the HMA for grant of decree of divorce by mutual consent are present in the present matter. The elements/ingredients required under Section 13-B are separate living of the parties to the marriage for one year or more, have not been able to live together and there is consensus for dissolving the marriage.

14. In the present case both are respectively praying by way of their respective petitions claim to dissolve their marriage, hence there is consent to dissolve their marriage. Since last almost 5 year or more they have not been able to live together and are living separately with no intention/desire/wish to live together at all, so there is separation of more than one year and there is their incapacity of living together. Thus, all three ingredients of Section 13-B are present there except the form.

15. Section 13-B of the HIMA requires that a petition for dissolution of marriage by a decree of divorce by mutual consent be presented by both parties together. So the form required under Section 13-B is that parties are required to file one petition together for decree of divorce. Thereafter, both parties are required to make another motion not earlier than six month and later than eighteen months after the date of presentation of the petition and if the petition is not withdrawn in the meantime, the court after hearing the parties and after making such enquiry as it thinks fit and after being satisfied pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. So the second formal requirement before accepting their request for divorce is to allow the parties to have cooling off period of about six to eighteen months from the date of the petition to reconsider their decision of dissolving their marriage and if they remain firm in their decision court would accept their prayer.

16. In the present case wife's decisive willingness to dissolve her marriage is continuously present for the last 5 years whereas that of the husband also is continuously present for little more than 5 years but simply because willingness/consent were not in the particular form required under Section 13B of the HMA both have been suffering.

17. Section 13-B of the HMA, 1955 was introduced in India to provide a legal framework for divorce by mutual consent. This was introduced to simplify and expedite the divorce process for couples who wish to part ways amicably, reducing the time, expense and emotional stress associated with traditional divorce proceedings. It aimed to promote a more civilized and less contentious approach to divorce, recognizing the changing dynamics of modern relationship Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 8 of 30 and the need for a more practical and less adversarial way to dissolve marriages.

18. Thus, the objective of introducing Section 13B of the HMA was to provide quick relief to the parties to the failed marriage and to ameliorate their sufferings springing off their matrimonial ties. If all the ingredients as required under Section 13B of the HMA are otherwise available in the matter, it would be in the interest of the parties in particular and of the society in general to extend the relief of Section 13B of the HMA to those who for any reason are unable to follow or observe the particular form required under Section 13B. It would amount to recognizing the further changing dynamics of modern relationship and going about more practical to ameliorate the suffering of person in unfortunate matrimonial tie.

19. Hon'ble Supreme Court in Samar Ghosh v. Jaya Ghosh MANU/SC/1386/2007 while enumerating some instances of human behavior which may be relevant in dealing with the cases of ―mental cruelty‖ held that long period of separation may be concluded that the matrimonial bond was beyond repair. The marriage had become a fiction though supported by a legal tie and by refusing to sever that tie, the law in such case would not serve the sanctity of marriage; on the contrary, it would show scant regard for the feelings and emotions of the parties. In such like situation it may lead to mental cruelty.

20. In the opinion of this Court if parties to a marriage are found to be involved in acrimonious matrimonial discord with grave allegations and with no hope of living together, refusing to dissolve their marriage simply because one party approaching the court has not been able to prove the fault of the other, would amount to forcing parties to suffer further irrespective of there being fault or no fault of the party. Refusal of divorce would lead the parties to face law induced mental cruelty, particularly where both in their respective petition are seeking same relief i.e. dissolution of their marriage. No fruitful purpose would be served in finding who is at fault and whose petition be allowed and whose petition be dismissed.

21. Section 9 of the Family Court Act, 1984 mandates Family Court to endeavor for settlement between the parties to marriage. Section 10 of the Family Court Act, 1984 empowers the Family Court for laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by other party. Settlement could be arrived at between the parties either in respect of entire dispute or in respect of the part of the dispute involved. Further settlement could be arrived at between the parties or Court could put their issue settled by deciding in a way leaving no one aggrieved by the adjudication. Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 9 of 30

22. This court under Section 10 of the Family Court which is a Special Legislation feels empowered to do away with the form required under Section 13B of the HMA for dissolution of marriage of the parties in a matter as the present one where parties are living separately for more than a year, have not been able to live together since separation, are not willing to live together anymore and there is consent in the form of respective separate prayer for dissolution of their marriage (albeit for the fault of other).

23. This Court, therefore, in the present case in the facts and circumstances as noted above, without going into question as to who is at fault so as to allow husband's or wife's prayer for dissolution of their marriage on fault theory, hereby, dissolve their marriage under Section 13B of the Hindu Marriage Act, 1955 from the date of decree to be drawn up following this judgement, taking their respective prayer to dissolve their marriage (based on the faults of other) as their respective consent to dissolve their marriage.

24. Spirit of the Family Court Act is also to bring out settlement between the parties, which means putting quietus to their dispute. In the present case if prayer of husband or wife is accepted holding the other spouse guilty of matrimonial offense, the person against whom findings would go will take the matter to higher forum thus drag the other into rigmarole of further round of litigation with added agony and harassment. Similarly, refusal of their respective prayer, if they failed to prove their respective allegations, would also lead to law induced mental cruelty. Hence, in the peculiar facts of parties to the present marriage, dissolving their marriage under Section 13B of the HMA in the aforesaid manner is the only best way out to provide quietus to their unending matrimonial acrimony and bitterness. To have quietus in life it always good to not look for answer as to what went wrong but to accept as it is what has come.

25. In view of the above discussion, reasoning and consequent passing of decree of divorce under Section 13B of the HMA for the reason discussed herein before, the marriage between the parties held on 06.06.1992 stands dissolved.

26. Wife's petition bearing HAMA No. 6/2019 for grant of maintenance under Hindu Adoption and Maintenance Act is pending where all claim of the wife qua maintenance shall be adjudicated on merits. The common order dt 05.08.2022 passed in all three petitions granting interim maintenance to the wife shall remain in operation till petition bearing HAMA No. 6/2019 is decided on merits.

27. Both petition bearing HMA No. 596/2019 and HMA No. 211/2019 stand disposed off in accordance with the reasoning and Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 10 of 30 discussion contained in this judgement. Common decree sheet be drawn in accordance with

28. paragraph No. 23 of this judgment and be placed in each files.

29. Signed judgement be placed in both files.‖

15. The relevant statutory provision under which the original petitions were filed is Section 13 of the HMA, which provides for dissolution of marriage by a decree of divorce at the instance of either spouse on specified fault-based grounds. The provision, insofar as relevant, reads as follows: ―13. Divorce. — (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— 1[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or ……..‖

16. By contrast, the provision invoked by the learned Family Court while passing the Impugned Judgment is Section 13B of the HMA, which deals exclusively with divorce by mutual consent and stipulates the conditions and procedure for granting such relief. The said provision is reproduced below for ready reference: ―13B. Divorce by mutual consent.— (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 11 of 30 marriage should be dissolved. On the motion of both the parties made not earlier than six (2) months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.‖

17. The express language of Section 13B of the HMA demonstrates that divorce by mutual consent is founded on a voluntary agreement of both parties reached prior to the presentation of the petition. Although the course adopted by the learned Family Court may, on a practical level, appear to expedite relief, we are of the clear view that judgment conflicts with the express statutory mandate and subverts the legislative scheme embodied in Section 13B of the HMA. 18. We reach this conclusion because the manner in which two independent, fault-based petitions under Section 13 were clubbed together and thereafter treated as a single petition under Section 13B is legally impermissible. The adopted course of action effects a substantive change in the nature and character of the original proceedings and disregards the separate and distinct fields in which Sections 13 and 13B of the HMA operate. 19. The mere fact that both spouses have, independently and separately, sought dissolution of the marriage does not convert their respective petitions into a petition under Section 13B. The foundational requirement of Section 13B is a prefatory, pre-existing, mutual agreement i.e., a meeting of minds, reached before institution of proceedings. In the absence of that consensus at the inception, later- filed parallel petitions cannot be retroactively re-cast as a petition for Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 12 of 30 divorce by mutual consent. 20. The learned Family Court proceeded on the view that Section 13B imposes only a procedural ―form‖ and that, because the factual ingredients, in the learned Family Court‘s assessment, were present, it could dispense with the formal requirement of a joint petition and move directly to grant relief. 21. This court is of the considered view that such approach of the learned Family Court undermines a substantive statutory requirement as a mere procedural formality. Section 13B of the HMA embodies not only a form but also essential substantive safeguards, including the prefatory consensus and the statutory cooling-off and inquiry mechanisms, which cannot be disregarded. 22. The learned Family Court, in the Impugned Judgement, identified three elements as satisfying Section 13B of the HMA, which are: (a). that the parties have been living separately for one year or more; (b). that they have been unable to live together; and (c). that there is a consensus to dissolve the marriage, inferred from each party‘s separate prayers for dissolution.

23. We are of the firm view that the learned Family Court overlooked the most fundamental requirement of Section 13B, the element of ―mutual consent‖. That consent cannot be inferred solely from the three factors listed above; it must be established as an unequivocal meeting of minds between the spouses while instituting the divorce petition. 24. The element of consent is pivotal in relation to any petition presented under Section 13B of the HMA. The three factors identified Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 13 of 30 by the learned Family Court are merely concomitants which may indicate circumstances conducive to the dissolution of marriage; however, they cannot by themselves constitute the statutory foundation for granting a decree. Those circumstances acquire legal effect under Section 13B only when accompanied by the free and mutual consent of both spouses expressed in the joint manner required by the statute. 25. The learned Family Court has no statutory authority to alter or expand the substantive scheme of the HMA so as to dispense with requirements the Legislature has imposed. The express requirement that a petition for divorce by mutual consent be presented ―together‖ by both parties is deliberate, as it reflects legislative recognition that the momentous step of dissolving a marriage should be taken only where there is a genuine, contemporaneous agreement between the spouses. 26. We must also emphasise the significance of the phrase ―mutually agreed‖ used in Section 13B(1) of the HMA. It is not satisfied by the mere filing of separate petitions by the parties. The learned Family Court‘s characterization of the words ―together‖ and ―mutually agreed‖ as merely matters of form is completely erroneous and strikes at the core of Section 13B. Re-characterising parallel, independent fault-based petitions as a mutual-consent petition without a clear, prior, joint agreement would circumvent the statutory safeguards and would therefore be contrary to law. 27. The legislative intent underlying Section 13B of the HMA makes it evident that ―mutual consent‖ is not a mere procedural formality but a substantive statutory requirement for the grant of divorce. A three-Judge Bench of the Hon‘ble Supreme Court in Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:25.09.2025 14:45:49 MAT.APP.(F.C.) 136/2025 Page 14 of 30 Smruti Pahariya v. Sanjay Pahariya 6 , while discussing and reaffirming the ratio of Sureshta Devi v. Om Prakash7, categorically held that the element of consent must exist both at the time of presentation of the petition and continue until the decree is finally granted. In this regard, the Apex Court also referred to the 71st Report of the Law Commission of India (1978) under the Chairmanship of Justice H.R. Khanna, titled “The Hindu Marriage Act, 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce”. 28. The said Report emphasized that just as marriage is founded on the consent of the parties, its dissolution by way of mutual consent must equally rest on the conscious and continuing agreement of both spouses. The Apex Court stressed that such consent cannot be presumed or inferred, and in the absence of clear and continuing mutual agreement, the jurisdiction to grant divorce under Section 13B simply does not arise. The relevant portion of Smruti Pahariya (supra) is extracted hereinbelow: ―31. After the said amendment in 1976 by way of insertion of Section 13-B in the said Act in the 74th Report of the Law Commission of India (April 1978), Justice H.R. Khanna, as its Chairman, expressed the following views on the newly amended Section 13-B: relationship between ―Marriage is viewed in a number of countries as a freely consenting contractual individuals. A modified version of the basis of consent is to be found in the theory of divorce by mutual consent. The basis in this case is also consent, but the revocation of the relationship itself must be consensual, as was the original formation of the relationship. The Hindu Marriage Act, as amended in 1976, recognises this theory in Section 13-B.‖ (emphasis supplied)