Mutual Consent Is Not a Legal Fiction—Consent Must Be Express, Joint, and Continuous: Delhi High Court Overrules Family Court’s Unilateral Divorce Decree Under Section 13B HMA

“Separate Fault-Based Petitions Do Not Amount to Mutual Consent” - In a significant pronouncement Delhi High Court ruled that a decree of divorce under Section 13B of the Hindu Marriage Act, 1955 cannot be granted without the statutory precondition of a joint petition supported by clear, contemporaneous and continuing mutual consent. Striking down the Family Court’s decision that unilaterally granted divorce based on separate fault-based petitions filed by the husband and wife, the Court observed:

“Consent under Section 13B is not a matter of inference or convenience—it is a jurisdictional fact. In its absence, the Court has no authority to proceed under that provision.”

Describing the impugned decree as legally unsustainable and passed without jurisdiction, the Division Bench of Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar directed that the original divorce petitions filed under Section 13 of the HMA be restored for adjudication on merits.

“You Cannot Manufacture Mutual Consent by Judicial Alchemy”: Consent Under Section 13B HMA Must Pre-Exist the Petition and Must Be Explicit

The marriage between the parties, solemnised on 6th June 1992, had irretrievably broken down by 2018. The husband, a pilot with Saudi Arabian Airlines, accused the wife of cruelty, while the wife accused the husband of adultery with a co-employee and mental cruelty. Both filed independent divorce petitions—he under Section 13(1)(ia), and she under Sections 13(1)(i) and (ia) of the HMA. These were contested petitions involving grave allegations and adversarial pleadings.

Without any joint motion or agreement between the spouses, the Family Court, Patiala House, New Delhi, in a startling move, suo motu dissolved the marriage under Section 13B, observing that since both parties had, over time, expressed a desire to dissolve the marriage, the statutory requirement of mutual consent was “substantially satisfied”.

The High Court firmly rejected this reasoning, holding: “The Family Court overlooked the most fundamental requirement of Section 13B—the element of mutual consent. That consent cannot be inferred solely from the separate prayers for divorce; it must be established as an unequivocal meeting of minds between the spouses at the time of instituting the joint petition.”

It added that the jurisdiction to grant divorce by mutual consent is not procedural but substantive, and cannot be triggered by judicial presumption or procedural convenience.

“Statutory Safeguards Cannot Be Bypassed In The Name of Expediency”: High Court Warns Against Family Courts Usurping Article 142 Powers

In a strongly worded rebuke, the Court underlined that the Family Court’s decision “amounts to an assumption of plenary powers akin to Article 142 of the Constitution”, which only the Supreme Court possesses.

Referring to Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415, the Bench reiterated: “Only the Supreme Court, in exercise of its extraordinary powers under Article 142, can convert a fault-based divorce proceeding into one under Section 13B. No other Court, including the Family Court, can arrogate to itself such jurisdiction.”

The Family Court’s attempt to mould relief by treating adversarial divorce petitions as a mutual consent proceeding was described as a serious jurisdictional error and a “substantive violation of legislative command”. The Court observed that such a decree was void ab initio and “constituted an impermissible recharacterisation of legal pleadings and reliefs.”

“Form is Not Mere Formality—Joint Petition and Cooling-Off Period are Jurisdictional Thresholds Under Section 13B”

Addressing the Family Court’s view that the lack of a joint petition was a matter of mere procedural form, the High Court clarified that the requirements under Section 13B—including joint petition, cooling-off period, and second motion—are not optional proceduralities but core jurisdictional prerequisites.

It stated: “Section 13B is not merely a procedural shortcut but a substantive statutory right. The element of mutual consent is foundational—it is not satisfied by separate fault-based petitions filed for independent reasons.”

The judgment clarified that mutual consent must not only pre-exist the filing of the joint petition but also continue till the decree is finally passed, and that no court has jurisdiction under Section 13B in the absence of such unambiguous and continuing consent.

“No Adversarial Proceeding Can Be Retrofitted Into a Mutual Consent Framework”: Separate Petitions with Serious Allegations Preclude Section 13B Jurisdiction

The Family Court had opined that since both parties were seeking divorce—albeit for different reasons—it was reasonable to presume mutual consent. The High Court decisively disagreed.

“Separate petitions containing allegations of cruelty and adultery are not evidence of mutual agreement—they are evidence of precisely the opposite: adversarial, conflicting claims. The jurisdiction under Section 13B cannot be inferred or presumed in such circumstances.”

The Court drew a sharp line between fault-based divorce under Section 13 and consensual divorce under Section 13B, observing:

“The two provisions operate in separate legal fields. Recharacterising adversarial proceedings as mutual consent divorce undermines the statutory framework and renders the jurisdictional scheme meaningless.”

“Procedural Flexibility Under the Family Courts Act Cannot Override Substantive Requirements of HMA”

The Family Court had invoked Sections 9 and 10 of the Family Courts Act, 1984, to claim procedural flexibility in order to grant relief. The High Court responded with a categorical rejection:

“Section 10 of the Family Courts Act does not empower the Family Court to alter, dilute or substitute substantive requirements of other enactments. Statutory safeguards under Section 13B of the HMA cannot be overridden by discretionary interpretation of procedure.”

The Court noted that while Family Courts are encouraged to facilitate reconciliation and settlement, they are not empowered to rewrite legal requirements, especially those grounded in express legislative intent.

“Decree Passed Without Jurisdiction is a Nullity—No Equitable Consideration Can Save It”

While acknowledging the emotional and psychological toll of prolonged matrimonial disputes, the Court firmly declined to validate the Family Court’s approach by appealing to expediency or equity.

It stated: “A decree passed without jurisdiction is a legal nullity. No amount of good intention or practical wisdom can compensate for the lack of legal authority.”

Reaffirming Sureshta Devi v. Om Prakash, the Court added: “Mutual consent must continue till the decree of divorce is passed. If one party withdraws consent or has never given it jointly, the court loses jurisdiction altogether.”

Decree Set Aside, Petitions Restored

The Court concluded that the Family Court lacked jurisdiction to convert fault-based divorce petitions into a decree under Section 13B and therefore held the decree to be a nullity in law. It allowed the appeal and directed that the parties’ respective divorce petitions be restored and adjudicated on merits.

“The Family Court’s approach reflects a complete misreading of both the purpose and letter of Section 13B. Consent is not a guesswork—it is a jurisdictional cornerstone, and its absence vitiates the entire process.”

Date of Judgment: 24 September 2025