Civil Appeal No 633 of 1991
From the Judgment and Order dated 181989 of the Himachal Pradesh High Court in FA0
HMA No 28 of 1989
Dhruv Mehta Aman Vachher and SK Mehta for the Appellant
Subhagmal Jain and HK Puri for the Respondent
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
Special Leave granted
This appeal from a decision of the Himachal Pradesh High Court concerns the validity of a decree of dissolution of marriage by mutual consent and is said probably rightly to raise an important issue
The issue is whether a party to a petition for divorce by mutual consent under Section 13B of the  Act  can unilaterally withdraw the consent or whether the consent once given is irrevocable
The appellant is the wife of the respondent
They were married on 21 November 1968
They lived together for about six to seven 277 months
Thereafter it is said that the wife did not stay with the husband except from 9 December 1984 to 7 January 1985
That was pursuant to an order of the Court but it seems that they did not live like husband and wife during that period also
On 8 January 1985 both of them came to Hamirpur
The wife was accompanied by her counsel Shri Madan Rattan
After about an hour discussion they moved a petition under Section 13 B for divorce by mutual consent in the District Court at Hamirpur
On 9 January 1985 the Court recorded statements of the parties and left the matter there
On 15th January 1985 the wife filed an application in the Court inter alia stating that her statement dated 9 January 1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce
Nor they were permitted to accompany her to the Court
She said that she would not be party to the petition and prayed for its dismissal
The District Judge made certain orders which were taken up in appeal before the High Court and the High Court remanded the matter to the District Judge for fresh disposal
Ultimately the District Judge dismissed the petition for divorce
But upon appeal the High Court has reversed the order of the District Judge and granted a decree for dissolution of the marriage by mutual consent
The High Court has observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal however would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent if the consent was otherwise free
The High Court also recorded a finding that the wife gave her consent to the petition without any force fraud or undue influence and therefore she was bound by that consent
Section 13 B was not there in the original 
It was introduced by the Amending 68 of 1976
Section 13 B provides 13 Bl Subject to the provisions of the 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 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 marriage should be dissolved
278 2 On the motion of both the parties made not earlier than six 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
 It is also necessary to read Section 23lbb 231 In any proceeding under this Act whether defended or not if the Court is satisfied that bb When a divorce is sought on the ground of mutual consent such consent has not been obtained by force fraud or undue influence and   Section 13 B is in pari materia with Section 28 of the 
Sub section 1 of Section 13 B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties
Similarly sub section 2 providing for the motion before the Court for hearing of the petition should also be by both the parties
There are three other requirements in sub section 1
There are i They have been living separately for a period of one year
ii They have not been able to live together and iii They have mutually agreed that marriage should be dissolved
The living separately  for a period of one year should be immediately preceding the presentation of the petition
It is necessary that immediately preceding the presentation of petition the parties must have been living separately
The expression living separately  connotes to our mind not living like husband and wife
It has no reference to the place of living
The parties may live under the same roof by force of circumstances and yet they may not be living as 279 husband and wife
The parties may be living in different houses and yet they could live as husband and wife
What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition
The second requirement that they have not been able to live together  seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves
The third requirement is that they have mutually agreed that the marriage should be dissolved
Under sub section 2 the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date
This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force fraud or undue influence
The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true
If the Court is satisfied that the consent of parties was not obtained by force fraud or undue influence and they have mutually agreed that the marriage should be dissolved it must pass a decree of divorce
The question with which we are concerned is whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition
The need for a detailed study on the question has arisen because of the fact that the High Courts do not speak with one voice on this aspect
The Bombay High Court in Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe AIR 1984 Bom
302 has expressed the view that the crucial time for the consent for divorce under Section 13 B was the time when the petition was filed
If the consent was voluntarily given it would not be possible for any party to nullify the petition by withdrawing the consent
The court has drawn support to this conclusion from the principle underlying Order XXIII Rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs or one of the parties to the suit
The High Court of Delhi adopted similar line of reasoning in Smt
Chander Kanta vs Hans Kumar and Anr AIR 1989 Delhi 73 and the Madhya Pradesh High Court in Meena Dutta vs Anirudh Dutta 1984 11 DMC 388 also took a similar view 280 But the Kerala High Court in KL Mohanan vs Jeejabai AIR 1988 Kerala 28 and the Punjab and Haryana High Court in Harcharan Kaur vs Nachhattar Singh AIR 1988 Punjab  Haryana 27 and Rajasthan High Court in Santosh Kumari vs Virendra Kumar AIR have taken a contrary view
It has been inter alia held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the Court passes a decree for divorce
The satisfaction of the Court after holding an inquiry about the genuineness of the consent necessarily contemplates an opportunity for either of the spouses to withdraw the consent
The Kerala High Court in particular has ruled out the application of analogy under Order XXIII Rule I of the Code of Civil Procedure since it is dissimilar to the situation arising under Section 13 B of the Act
From the analysis of the Section it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce
There is a period of waiting from 6 to 18 months
This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends
In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition
The spouse may not be party to the joint motion under sub section 2
There is nothing in the Section which prevents such course
The Section does not provide that if there is a change of mind it should not be by one party alone but by both
The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree
This approach appears to be untenable
At the time of the petition by mutual consent the parties are not unaware that their petition does not by itself snap marital ties
They know that they have to take a further step to snap marital ties
Sub section 2 of Section 13 B is clear on this point
It provides that on the motion of both the parties  if the petition is not withdrawn in the meantime the Court shall pass a decree of divorce What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce
Secondly the Court shall be satisfied about the bonafides and the consent of the parties
If there is no mutual consent at the time of the enquiry the court gets no jurisdiction to make a decree for divorce
If the view is otherwise the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other
Such a decree cannot be regarded as decree by mutual consent
281 Sub section 2 requires the Court to hear the parties which means both the parties
If one of the parties at that stage says that I have withdrawn my consent or I am not a willing party to the divorce the Court cannot pass a decree of divorce by mutual consent
If the Court is held to have the power to make a decree solely based on the initial petition it negates the whole idea of mutualitly and consent for divorce
Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13 B Mutual consent should continue till the divorce decree is passed
It is a positive requirement for the court to pass a decree of divorce
The consent must continue to decree nisi and must be valid subsisting consent when the case is heard
See i Halsbury Laws of England Fourth Edition Vol
13 para 645 ii Rayden on Divorce 12th Ed
1 p 291 and iii Beales vs Beales  at 674
In our view the interpretation given to the section by the High Courts of Kerala Punjab  Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view
The decisions of the High Courts of Bombay Delhi and Madhya Pradesh supra cannot be said to have laid down the law correctly and they stand overruled
In the result we allow the appeal and set aside the decree for dissolution of the marriage
In the circumstances of the case however we make on order as to costs
TNA Appeal allowed


Summary:
The respondents in the appeals who were arrested for offences under various sections of the narcotic Drugs and Psychotropic Substances Act 1985 were refused bail and were remanded to judicial custody
On the basis of the report the Magistrate took cognizance and remanded them to judicial custody
The respondents filed writ petition and criminal miscellaneous petition before the High Court seeking bail under section 1672 Criminal Procedure Code on the grounds of belated submission of the chargesheet and on account of illness
The matter was referred to a Division Bench held that the limitations placed on the Special Court under section 37 2 of the Narcotic Drugs and Psychotropic Substances Act could not be read as fetters on the High Court in exercise of its power under section 439 Cr
PC to grant bail
Aggreieved the Narcotics Control Bureau appealed to this Court and contended that the High Court had no untremelled powers in the matter of granting bail as the provisions of section 37 of the NDPS Act override those of section 439 Cr
On the question whether the limitation placed on the Special Court under section 372 of the NDPS Act is to be treated as fetters on the powers of the High Court also in granting bail under section 439 Cr
PC Disposing of the appeals this Court 140 HELD 1
The powers of the High Court to grant bail under section 439 Cr p
C are subject to the limitations contained in the amended s37 of the  and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail
151E 2
When there is a special enactment in force relating to the manner of investigation enquiry or otherwise dealing with offences the other powers under the Code of Criminal Procedure should be subject to such special enactment
In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind
145C 31 The is a special enactment enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances
That being the underlying object and particularly when the provisions of s37 of the NDPS Act are in negative terms limiting the scope of the applicability of the provisions of the Criminal Procedure Code regarding bail it cannot be said that the High Court s power to grant bail under section 439 cr
PC are not subject to the limitation mentioned under section 37 of the NDPS Act
144E G 32 Section 37 of the NDPS Act starts with a non obstinate clause stating that notwithstanding anything contained in the Code of Criminal Procedure 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied144E 145F 33 The non obstante clause with which section 37 of the NDPS Act starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail 144G 34 In case of inconsistency between section 439 Cr
PC and S37 of the NDPS Act section 37 prevails
35 Consequently the power to grant bail under any of the provisions of the Code of Criminal Procedure should necessarily be subject to the conditions mentioned in section 37 of the NDPS Act
145FG Lt Col Prithi Pal Singh Bedi etc
vs Union of India  Others and Balchand Jain vs State of Madhya Pradesh 1977 2 SCR page 52 relied on
141 Usmanbhai Dawoodbhai Memon and Others vs State of Gujarat   referred to
The two accused respondents being on bail for a long time under the orders of the High Court and the Narcotics Control Bureau not passing the cancellation of bail the matter need not be remitted to the High Court and the respondents would continue to be on bail
151F