HC allows women’s plea against divorce sans consent

New Delhi: Ten years after her estranged husband had passed away, a woman's plea challenging their divorce by mutual consent was allowed by the Delhi High Court, which set it aside by saying that she had not consented to a trial court's decision.

Justice Anu Malhotra said that under the Hindu Marriage Act, divorce by mutual consent can be granted only if there was continued consent of both parties up to the date of decision.

The high court noted that in the instant case the woman was absent when the lower court had passed the order. "In the absence of the continued mutual consent a decree of divorce under Section 13 B(2) of the Hindu Marriage Act, 1955 as amended cannot be granted. 

From the absence of one of the parties before the trial court, the presumption of consent for divorce cannot be attributed to that party as consent needs to continue till the date of the decree of divorce...," the high court said.

It further said, trial court was under the law and obligated to hear the parties to ascertain their consent, but this was "clearly not done in the instant case" as the woman was not present when the decree of divorce was granted on October 6, 2007. 

Four years after their marriage in February 2001, the husband had moved the trial court in May 2005 seeking divorce on the ground of cruelty. 

However, during the proceedings, they had negotiated a settlement under which they had agreed to file a petition for divorce by mutual consent and part ways. 

According to the agreement, the man had to pay Rs 15 lakh as alimony to her, the high court noted.