Right to Seek Mutual Consent Divorce Ends with Death of Spouse: Bombay High Court”

Court affirms that divorce proceedings do not extend to legal heirs, emphasizing the personal nature of the right to divorce. 

In a significant ruling, the Bombay High Court has determined that the right to sue in a mutual consent divorce case does not survive the death of one of the spouses. The judgment, delivered by Justices Mangesh S. Patil and Shailesh P. Brahme, emphasized that the right to divorce is personal and does not transfer to legal heirs. This decision came in the case of Aniket Arun Dhatrak (deceased) v. Shalaka Aniket Dhatrak, where the court addressed whether the deceased husband’s mother and brothers could continue the divorce proceedings. 

Facts of the Case: Aniket Arun Dhatrak and Shalaka Aniket Dhatrak filed a petition for divorce by mutual consent on October 14, 2020. As part of their agreement, Aniket paid Shalaka Rs. 2,50,000 out of a total agreed amount of Rs. 5,00,000. Tragically, Aniket died due to COVID-19 on April 15, 2021, before the couple could move the second motion required under Section 13-B(2) of the Hindu Marriage Act, 1955. Following his death, Shalaka withdrew her consent for the divorce, prompting Aniket’s mother and brothers to seek permission to continue the proceedings as his legal heirs. 

Court Observations and Views: Legal Framework and Analysis: The court began by analyzing Section 13-B of the Hindu Marriage Act, 1955, which deals with divorce by mutual consent. It noted that the process involves two crucial motions: the first motion to present the petition and the second motion to confirm the consent, which must be filed jointly by both parties not earlier than six months and not later than eighteen months from the date of the petition. 

Justice Mangesh S. Patil stated, “The submission of the second motion under sub-section (2) is a condition precedent for passing a decree of divorce. It is only on making such a motion by both sides that the court can proceed for hearing and undertake the requisite inquiry.” 

Right to Sue and Personal Rights: The court emphasized that the right to seek divorce is inherently personal and does not survive the death of either spouse. It referred to precedents such as Sureshta Devi v. Om Prakash and Hitesh Bhatnagar v. Deepa Bhatnagar, which underline that mutual consent must be present at both the time of filing the petition and when the court grants the decree. 

The judgment highlighted, “Once a spouse dies before the second motion is filed, the petition for mutual consent divorce itself becomes infructuous. The right to seek divorce does not survive to the legal heirs.” 

Financial Settlements: Regarding the financial transactions between Aniket and Shalaka, the court noted that the payment made by Aniket was part of the mutual consent terms. However, since the divorce could not be finalized due to Aniket’s death, the court found no grounds to compel Shalaka to return the money. 

Conclusion: The Bombay High Court’s decision to dismiss the appeal underscores the non-transferable nature of divorce proceedings initiated under mutual consent. By affirming that such rights do not extend to the legal heirs, the court reinforced the principle that the right to seek divorce is a personal one. This judgment sets a clear precedent for similar cases in the future, emphasizing the need for both parties to be alive and consenting at every stage of the mutual consent divorce process. 

Aniket Arun Dhatrak (Deceased) v. Shalaka Aniket Dhatrak 

Date of Decision: August 1, 2024