The Delhi High Court has overturned a Family Court order that had dissolved a marriage on its own initiative under the "mutual consent" provision of the Hindu Marriage Act, even though no such joint petition was filed by the estranged couple. The appellate bench made it clear that consent in divorce cannot be presumed or patched together from two opposing petitions.
Background
The case stems from a long-running matrimonial dispute between a husband, a commercial pilot, and his wife, who married in 1992 and later had two children. Trouble began in the mid-2010s, with allegations of adultery and cruelty flying both ways.
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In 2019, the husband filed for divorce on grounds of cruelty, while the wife filed her own petition alleging adultery and cruelty. After years of litigation, the Family Court at Patiala House unexpectedly dissolved their marriage in July 2024, invoking Section 13B of the Hindu Marriage Act — the provision dealing with divorce by mutual consent.
The twist was that neither party had ever filed a joint petition under Section 13B, which is the legal requirement for a mutual consent divorce. Instead, the Family Court treated their separate divorce pleas as sufficient evidence of "consent".
Court’s Observations
The High Court bench of Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar strongly disagreed with this approach.
“The foundational requirement of Section 13B is a conscious, joint agreement by both spouses to end their marriage,” the judges observed. “Separate and adversarial petitions cannot be retroactively re-cast as a mutual consent divorce.”
The court stressed that the statutory safeguards — including the need for a joint petition, a cooling-off period, and continued mutual consent until the final decree — were not empty formalities but essential conditions. Ignoring them, the bench said, was legally impermissible.
The judges also noted that while the Supreme Court has extraordinary powers under Article 142 of the Constitution to mould reliefs and even convert contested divorces into mutual consent ones, subordinate courts have no such authority. “By assuming such plenary powers, the Family Court overstepped its jurisdiction,” the bench remarked.
Allowing the wife’s appeal, the High Court set aside the July 2024 decree of divorce. Both original divorce petitions — one by the husband and the other by the wife — have now been restored to the Family Court for adjudication on their merits.
Case Title: Appellant v. Respondent
Case Number: MAT.APP.(F.C.) 136/2025
