Thursday, February 2, 2017

waiting Period of Six Months in Mutual Consent Divorce under sec.13-B of Hindu Marriage Act 1955

waived off waiting-cooling period of six months in mutual consent divorce by supreme court.

. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.
mutual divorce
Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.
In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4490 OF 2016
(Arising out of SLP (c) No.12161 of 2016)

NIKHIL KUMAR                                       Appellant
VERSUS
RUPALI KUMAR                                          Respondent
J U D G M E N T
KURIAN,J.

  1. Leave granted.
  1. The appellant and respondent have filed the petition under Section 13- B(1) of the Hindu Marriage Act, 1955 before the Family Court (Principal Judge, Family Court, Tiz Hazari District Courts), Delhi. The parties were married on 07.02.2011 according to the customary rights. It is submitted that they have not been able to workout their marriage as husband and wife since day one. For the last around five years, most of the time they have been living separately and their marriage reached a breaking point more than a year back. Both the parties, after giving serious thought on the entire consequences of their decision, have taken a conscious decision to part and accordingly they have filed a petition before the Family Court for divorce on mutual consent on 29.03.2016. The Family Court granted the First Motion on 01.04.2016 and now, the matter is posted in the month of October, 2016.
  1. The respondent has made a travel plan to move to New York on 29.04.2016 seeking a job and resettlement in life, after a long period of traumatic experiences of her married life as stated in the affidavit.
  1. In the above circumstances, the appellant has filed the present appeal praying for waving the six months’ waiting period required under Section 13-B(2) of the Hindu Marriage Act, 1955, invoking our jurisdiction under Article 136 read with Article 142 of the Constitution of India.
  1. The respondent has appeared in person. She was directed to file an affidavit before this Court. The respondent in the affidavit has endorsed the submission that they were not happy ever since their marriage in 2011. It is stated that with the set-back of a broken marriage, the respondent needs a change in environment and thus, she has proposed to move to New York and it would be difficult for her to get back to India after six months or even in the near future. It is further stated that both of them have realized the consequences of their decision and they have taken the decision out of their free will and without any undue influence or coercion.
  2. Both the parties have appeared before the Court. The appellant was born in the year 1984, and is graduate in commerce. He is working as senior manager in a private firm. The respondent was born in the year 1982 and she also is a graduate.
  3. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.
  4. Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.
  5. In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.
  6. The Registry to communicate a copy of this judgment to the Family Court forthwith.
  7. The appeal is allowed as above. No order as to costs.
…………………..J (KURIAN JOSEPH) …………………..J
(ROHINTON FALI NARIMAN)
NEW DELHI APRIL 27, 2016

Once Consent given in writing cannot be withdrawn in Divorce by way of Mutual Consent sec.13-B of HMA

 In this view of the matter it is evident that the withdrawal of the consent by respondent is tainted with malafide, baseless and is unjust. Thus, it is a fit case where a decree of divorce by way of mutual consent should have been granted. Accordingly, the impugned orders dated 1.10.2003 and 31.3.2004 of the Learned Additional District Judge is set aside and the present petition is allowed and the marriage solemnized between the parties Rachana Jain and Neeraj Jain on 12.3.1996 is dissolved by decree of divorce under section 13B(2) of the Act.
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Delhi High Court
Smt. Rachna Jain vs Shri Neeraj Jain on 25 May, 2005
Equivalent citations: 120 (2005) DLT 365, II (2006) DMC 410
Author: M Mudgal
Bench: M Mudgal
JUDGMENT Mukul Mudgal, J.

1. Rule. Since the respondent did not appear after service and publication, the matter has already been proceeded ex parte against the respondent.

2.This petition under Article 227 of the Constitution of India challenges the order dated 31.3.2004 passed by Additional District Judge who declined to modify and rectify the order dated 1.10.2003 and for passing decree of divorce under Section 13B(2) of the Hindu Marriage Act,1955 (hereinafter referred to as 'Act').

3. In a troubled marriage there were pending criminal matters and divorce proceedings. Eventually divorce by mutual consent and settlement of all criminal and civil disputes was agreed to by both the spouses resulting inter alia in the wife withdrawing her criminal complaints and dropping all claims towards maintenance for herself and her daughter. The husband enjoyed all the benefits of the settlement and then remarried and has a child from the second marriage and yet withdrew his consent for divorce by mutual consent leading to the situation where by the impugned judgment the learned Additional District Judge has declined to grant divorce to the petitioner/wife by permitting the unilateral withdrawal of mutual consent by the respondent/husband leading to the present petition under Article 227 of the Constitution.

4. The facts of the case as per the unrebutted averments in the writ petition are as under:

a) The marriage between the petitioner/wife and the respondent/husband who are both Hindus, was solemnized on 12.3.1996 according to Hindu Rites and ceremonies.

b) That on 11.12.1997 one female child was born and the said child is in the custody of the petitioner.

c) After the marriage the petitioner was subjected to cruelty and humiliation by the respondent and was the victim of harassment caused by respondent for continuous demand of dowry, by beating and torturing the petitioner at the instigation of his parents with desire to fulfilll the demand of dowry and cash which led to continuous mental tension, cruelty and agony to the petitioner. Under compulsion and torturous circumstances the parents of the petitioner paid lot of money to the respondent on demand ad also arranged separate accommodation so that the matrimonial life of the petitioner may not get disturbed.

d) That because of violent behavior and greedy nature of the respondent, the petitioner was thrown out by the respondent from the matrimonial home. It is not in dispute that since 7th Feb.2002 both the parties are living separately.

e) That on 18.2.2002 the respondent/husband filed a petition under section 10 of the 'Act' for judicial separation before the District Judge, Delhi and on 1.5.2002 petitioner filed a complaint under section 498A/406 IPC before Dowry Cell.

f) On 15.7.2002 the petitioner filed an application under Section 24 of the Act for maintenance before the Additional District Judge, Delhi after she put in her appearance on the receipt of summons in the above matter.

g) That on 16.9.2002, the respondent moved an application before the Ld. ADJ for withdrawal of his petition under Section 10 which was declined by the said court.

h) That on 8.9.2003 both the parties compromised their disputes and entered into a compromise deed. By virtue of the settlement under the said compromise the parties filed an application under Order 6 Rule 17 read with section 151 CPC for amendment converting the petition under Section 10 of Hindu Marriage Act into a petition under Section 13(B)(1) of the Hindu Marriage Act for divorce by mutual consent.

i) Along with the application for amendment both the parties filed their affidavit in support as well as both the petitions under section 13B(1) and 13B(2) of the said Act for dissolution of their marriage by way of mutual consent together with the compromise deed and prayed for waiving the stipulated period of 6 months and permission to place on record the petition under section 13B(2) along with the petition under Section 13B(1) of the said Act which is admitted by both the parties as per the records of the trial Court.

j) That on 25.9.2003 the learned ADJ allowed the above application for amendment and recorded the joint statements of both the parties knowing well that both the petitions under section 13B(1) and 13B(2) of the Act were on record. The said statement is as follows:-

"The marriage between both the parties was solemnized according to Hindu rites and ceremonies on 12.3.1996 at Delhi. After marriage, both the parties lived together as husband and wife and cohabited with each other and one female child, named Larika Jain was born out of the said wedlock. Due to differences in our attitudes and temperaments, we both are living separately since 7.2.2002 and now there is no possibility of our living together as husband and wife.

We have amicably settled all our disputes with regard to dowry articles, maintenance and permanent alimony and Istridhan etc. as per the compromise Deed, which is annexed with the petition and is Exb.P.1. It has been agreed between both of us that the child above named shall remain with the petitioner wife and petitioner husband shall not claim the custody of the child in future, nor he shall have the visiting right to meet the child. The petition is Exb. P-2, both undertake to abide by the terms and conditions of the petition contained therein, as well as the compromise deed. The petition has not been filed in collusion with each other. Our consent for divorces free from any force, fraud or undue influence. The petitioner wife undertakes to get the FIR quashed, filed by her against the petitioner husband".

k) On 1.10.2003 the learned Additional District Judge passed the following order;-

"From the statement of the petitioners it is also evident that the consent of the petitioners for divorce is free from force, fraud or undue influence and there is no collusion in filing this petition.

I am therefore satisfied that the requirements of section 13(B)(1) of the Act have been duly satisfied in this case. However, the marriage of the petitioners can not be dissolved straight away in view of the provisions of section 13(B)(2) of the H.M. Act. Both the petitioners are therefore advised to try to live together and to patch-up their differences in due course of time. In case, they fail to do so, they may move their second motion petition within the statutory period in accordance with law."

l) That on 9.10.2003 the petitioner moved an application under Section 151 CPC for modification of the above order dated 1.10.2003 and submitted that on 25.9.2003 both the petitions under section 13B(1) and 13B(2) of the Act were on record and the parties have compromised their disputes and given their consent for dissolving the marriage by way of decree of divorce by mutual consent. It was also admitted by both the parties that the Learned Additional District Judge granted permission to file the second motion petition under Section 13B(2) of the Act by waiving the stipulated period of 6 months on the oral request and prayer of the parties. Therefore, it was prayed that the order dated 1.10.2003 passed by the said Court be rectified/modified to the extent that the marriage between the parties stands dissolved after the joint statement was recorded on 25.9.2003.

m) That on 19.1.2004 the respondent filed an application for withdrawal of his consent in a second motion and admitted in the said application that the Learned Additional District Judge was pleased to grant permission to file the second motion then by waiving the stipulated period of 6 months. The only ground mentioned for withdrawal of the consent was that the respondent after signing the second motion has realized his approach on matrimonial matter is not correct and further felt that the matrimonial relationship must continue.

5. That on 31.3.2004 the Learned Additional District Judge dismissed the application of the petitioner for modification of the order dated 1.10.2003 and allowed the application of the respondent for withdrawal of the consent in the second motion under Section 13B(2) and dismissed the said petition. This petition challenges the order dated 31.3.04 permitting the respondent to withdraw his counsel.

6. That the impugned order dated 31.3.2004 declining to modify the order dated 1.10.2003 thereby dismissing the petition under section 13B(2) of the Hindu Marriage Act reads as follows;

" Before adverting to the submissions made by the Ld. Counsel for both the parties, it will be proper to know the back ground of the case. In fact petition bearing HMA No. 165/2002 for judicial separation was filed by petitioner Neeraj Jain U/s 10 H.M. Act against the respondent wife Rachna Jain on 15.2.2002 but during the proceedings. Both the parties settled the matter amicably and agreed to seek divorce by mutual consent and accordingly an application U/s 6 rule 17 CPC for converting that petition into a petition for divorce by mutual consent u/s 13(B)(1) HM Act was moved on 20.9.2003 along with amended petition U/s 13B(1) H.M. Act and even the second motion petition U/s 13B(2) H.M. Act was also got assigned to this Court from the Ld. District and sessions Judge, Delhi. Although application U/o 6 rule 17 CPC for converting the petition u/sec. 10 Hindu Marriage Act was allowed by Ld. Predecessor of this Court vide order dated 25.2.2003 and joint statement of both the petitioners to the first motion petition was recorded on the allowed vide order dated 1.10.2003 and second motion petition U/s 13 H.M. Act was adjournment to 29.10.2003 for consideration.

It is pertinent to mention here that second motion petition u/s 13B(2) H.M. Act was filed by the parties without any application for waiving the statutory period of six months. On 22.12.2003 an application for modification of the order/ judgment dated 1.10.2003 passed in the first motion petition on behalf of the petitioner No. 2 Rachna Jain and thereafter an application on behalf of the petitioner No. 1 Neeraj Jain for withdrawal of his consent for his second motion petition was also moved.

During the course of arguments Shri R.K. Mehta Ld. Counsel for the petitioner No. 2 Rachna Jain submitted that order dated 1.10.2003 passed in the first motion u/s 13B(1) H.M. Act requires modification and in fact a decree of divorce should have been passed by the court because the second motion petition u/s 13B(2) H.M. Act was also pending when joint statement of both the petitioners was recorded on 25.9.2003. It was also averred that Petitioner No. 1 cannot withdraw his consent without any allegations of fraud, force or undue influence in obtaining his consent. In support of his submissions. Ld. Counsel of the petitioner No. 2 Rachna Jain placed reliance on the case reported as Smt. Krishna v. Atar Singh 1992 RLR 95 = 46 (1992) DLT 171, K. Om Prakash v. Nandi AIR 1980 A.P. 167 and Dhanjit v. Beena 1990 R.L.R. 167.

The Learned counsel for the petitioner No. 1 Neeraj Jain has however submitted that a party to the petitioner U/s 13B H.M. Act can withdraw his/her consent before passing the decree of divorce and decree of divorce by mutual consent can not be passed in this case because of the willingness of Petitioner No. 1 to withdraw his consent. In support of his submissions Ld. Counsel for the petitioner No. 1 placed reliance on the cases reported as K.R. Mohanan v. Jeejatai AIR 1988 Kerala 28, Girija Kumari v. Vijaanandan AIR 1995 Kerala 159 and Sureshta Devi v. Om Prakash (1991) DMC 313 (SC) = AIR 1992 SC 1904.

I have carefully perused the aforesaid case relied upon by the ld. Counsel for both the petitioners in support of their respective submissions are not much helpful in view of the judgment of the Supreme Court in the case Sureshta Devi v. Om Prakash I (1991) DMC 313 (SC) = AIR 1992. SC 1904 where of the Hon'ble High Courts held that a party to a petition U/s 13B HMA for seeking divorce by mutual consent can unilaterally withdraw his/her consent before the passing of the decree and the consent once give is not irrevocable. Although later on in the case of Ashok Hura v. Rupa Bipin Zeveri reported as I (1997) DMC 491 (SC) = AIR 1997 SC page 1266, the Hon'ble Supreme Court observed that the decision in the case of Sureshta Devi v. Om Prakash requires reconsideration because the observations made therein about the time limit for withdrawal of the consent is too wide and that question what left open and as such the observations made by the Hon'ble Supreme Court in the case Sureshta Devi v. Om Prakash (supra) are still pending. Moreover in the case of Ashok Hura v. Rupa Bipin Zeveri reported as I (1997) DMC 491 (SC) = AIR 1997 SC page 1266 the main question that arose for consideration was whether a party to a petition for mutual divorce can withdraw the consent after the expiration of the period of 18 months after the filing of the first motion petition U/s 13(B)(1) H.M. Act. In the present case second motion petition U/s 13(B)(2) H.M. Act was filed even prior to passing of the order on the application U/s 6 rule 17 CPC for converting the petitioner u/s 10 H.M.A. into a petition U/s 13(B)(1) H.M. Act for divorce by mutual consent and even no application u/s 151 CPC for waiving the statutory period of six months was moved and even no such permission was orally given by the Court. No doubt the first motion petition U/s 13 HMA has been allowed by this court vide order/ judgment dated 1.10.2003 but in the second motion petition U/s 13 H.M. Act joint statement of the parties is yet to be recorded and as such either of the party to this second motion petition has right to withdraw his/her consent as the consent given in the first motion petition U/s 13(B)(1) H.M. Act is an irrevocable and it can be unilaterally withdrawn by either party before the passing of the decree of divorce as has been held by the Hon'ble Apex Court in the case of Sureshta Devi v. Om Prakash (supra). Since the petitioner No. 1 Neeraj Jain has already moved an application for withdrawal of his consent to this second motion petition through his counsel and as such this application moved on behalf of the petitioner No. 2 Rachna Jain for modification of the order dated 1.10.2003 is dismissed. Since the petitioner No. 1 Neeraj Jain has withdrawn his consent to this second motion petition U/s 13(B)(2) H.M. Act for divorce by mutual consent hence this petition is also dismissal. File be consigned to record room after necessary compliance".

7. That the respondent/husband had availed all the benefits and enjoyed the fruits of settlement and compromise between the parties in the following manner :-

(i) by not giving any stridhan and maintenance to the petitioner or to his minor child,

(ii) by handing over the custody of the child to the petitioner without taking any liability for her welfare,

(iii) by forcing the petitioner under the garb of the said compromise to withdraw the complaint under section 498 and 406 IPC filed with the Anti-Dowry Cell and the said complaint was in fact not persued by the petitioner and the same was closed on account of such compromise.

(iv) by re-marrying himself and having a child out of the said re-marriage.

8. The finding of the learned Additional District Judge regarding the non filing of the application for waiving the statutory period of 6 months is unsustainable because both the petitions under Section 13B(1) and 13B(2) along with application under Order 6 Rule 17 as well as compromise deed were on record. The respondent had in fact admitted the factum of grant of permission by the said Court to file the second motion by waiving the stipulated period of 6 months in his application for withdrawal of his consent.

9. Further, from the pleadings of the parties before the Learned Additional District Judge it is clear that both the parties had agreed for the grant of decree of divorce by mutual consent and compromised all their disputes and also prayed orally for the waiver of period of 6 months which was permissible as at the time of recording the joint statements as both the petitions under section 13B(1) and 13B(2) were already on record and indeed as per the position of law stated below.

10. Sections 13B(1) and (2) of the Hindu Marriage Act read as under;-

"13B. Divorce by mutual consent (1) Subject to the provisions of this Act 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.

(2) On the motion of both 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."

11. Reliance was placed by the learned counsel of the petitioner, Shri Mukesh Anand on the position of law laid down in the following judgments

(a) Andhra Pradesh High Court in K. Omprakash v. K. Nalini reported in AIR 1986 AP 167 wherein it was held as under:-

"10. For all the above reasons, we are of the opinion that S. 13B of the Hindu Marriage Act should be read as directory only. S. 13B(2), no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage but when the Court is fully satisfied on the basis of the proved facts, that in the interest of justice of the society and the individuals marriage tie should be put as under immediately, S. 13B(2) does not impose any fetter on the powers of the court to grant instant decree of divorce. At any rate, we are clearly of the opinion that the time table fixed by S. 13B(2) does not apply to an appellate Court. The great Telegu poet vemana said that the broken iron can be joined together but not broken hearts. Parties have been living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away. IN these circumstances, we think it just and proper to grant a decree of divorce straightaway. Accordingly we pass a decree of divorce declaring the marriage between the appellant and the respondents as dissolved with immediate effect."

b) Karnataka High Court in Smt. Roopa Reddy v. Prabhakar Reddy reported as II (1993) DMC 274 (Kar.) = AIR 1994 Karnataka 12 wherein it was held that the period of 6 months provided under section 13B(2) is directory and not mandatory and the following position of law was laid down:-

"13. The next question is whether the requirement under S. 13B of the Hindu Marriage Act has to be considered as mandatory or directory. The words used in the Section shall have to be read in the context in which the liberlised provision has been made by the legislature enabling the unwilling parties to seek divorce instantaneously and thus to put an end to the untold misery. When the intention of the Legislature in introducing S. 13B(2) is to liberalize and to unlock the wedlock the legislature has never intended the period of 6 months mentioned in the Act shall be strictly complied with. But, in spirit the Section is directly in nature and it has been incorporated to help 2 discordant spouse to get quick separation and to lead their remaining life without any agony. If S. 13B(2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated. Thus, S. 13B(2), though it is mandatory in form is director in substance".

18. Marriage is an union of 2 hearts. Success of married life depends on the edifice built with the mutual trust, understanding, love affection service and self sacrifice. Once this edifice is shaken, happy married life will be shattered into pieces. The result is one of the misery and emotion. Whether one accepts it or not liberalization in a way of living of individuals and reformation in age old customs and due to modernization and understanding of individual rights and equal status irrespective of se it is natural for either of the spouse to seek for dissolution. Where the marriage tie has been broken the court has to look to the interest of the parties and the welfare of the children as paramount. When it is impossible to live like husband and wife any compulsion to unite them will lead to social evils and disturbance of mental peace and disorder in the family life. However, rigid social fabric it is not the social system but the personal safety of the parties to the wedlock, shall prevail. This should be the guiding principle in view of S. 13B(1) of the Act. There is complete destruction of the essence of marriage between parties and it has reached the stage of irretrievable breakdown".

(c) In N.S. Padmanabhan v. Padmini reported in vol.62 (1996) Delhi Law Times Page 533 this Court held that under the Section 13 the parties who have already litigated for nearly six years and have not been able to change their minds about living together and are making prayer for waiver, should be allowed, the prayer as no useful purpose would be served by keeping the matter pending or allowing the things to get prolong.

"During the pendency of the petition, parties reached an amicable settlement and filed a petition before this Court, being Exhibit C-1. The petitioner paid the air fare for the respondent and her mother to enable them to appear before the Court to make statements in support of the said compromise petition. In their statements in support of the said application, both the parties have prayed that the proceedings pending be converted into a petition under Section 13B and divorce of mutual consent be awarded and the time likely to be taken for the second motion should be waived in the said circumstances of the present case since there is absolutely no doubt that the marriage has already broken down irretrievably. The Trial Court record, which is already her before this Court, was also examined. I have seen the Trial Court record also and from the material available, it is sufficiently clear that it will not be possible for the parties to live together. I had an occasion to examine even the demeanour of the parties and from their manner also, it appeared quite clear that the marriage between them is as good as dead. Sending the proceedings back together with the compromise petition, to my mind, would be a futile exercise leading to further prolongation of the litigation and continued agony of the parties. From the address of both the counsel also, it became quite clear that the marriage between the parties is lying dead and over. In these circumstances, and keeping in view the litigation in different Courts which has been going on between the parties over the last about six years, it will be a fit case for cutting across any procedural objections to resolve the matter between the parties in terms of their mutual agreement instead of directing them to go before the Court below."

d) This Court in FAO NO. 264 and CR 1400/89 = 1990 RLR 167 in the matter of Dhanjit v. Beena Badra where it was held that:-

" In a petition for divorce on the ground of cruelty, parties can seek amendment of petition U/O 6, R. 17, CPC so as to convert it into a petition for mutual divorce. Date of amended petition cannot relate back to date of original petition. Period of 6 months waiting in S. 13B(2) is not mandatory. It is directory and Court may grant divorce early if fact and circumstances so warrant. Period of 6 months does not relate to jurisdiction. It is a matter of procedure and parties may waive it."

" Even otherwise, the application u/S 13B of the Act, moved on 5.9.89 fulfillled all the requirements of S. 13B(1) of the Act. The trial Court, in my opinion could have treated this application as a motion for the purpose of Sub-section (2) also, and, of the basis of the material already on record, the Court ought to have passed a decree for divorce by mutual consent u/s 13B of the Act."

e) In K. Omprakash v. K. Nalini, reported in 1987 (2) H.L.R. 230 it was held as under:-

"The intention of the Legislature is to provide a minimum period of six months for rethinking of the parties" In this context, the question considered by the Bench was whether the Legislature intended that S. 13B(2) be treated as a mandatory provision of law or merely as a directory provision. In view of the text, context, purpose and design of the said provision, it was held hat S. 13(2) is a part of mere procedure and is, therefore, directory. It has been explained in this judgment that the six months time fixed by S. 13B(2) is not a rule relating to the jurisdiction of the Court to entertain a petition for divorce by consent, and that the question of jurisdiction is dealt with by Sub sec. (1) which must be strictly complied with and Sub-sec. (2) is part of mere procedure. Further, it has been reiterated that a procedural provision must be interpreted as a handmaid of justice in order to advance and further the interest of justice. Further, it has been explained in this judgment that S. 13B(2) does not impose any fetter on the powers of the Court to grant instant decree of divorce."

12. In the light of above position of law, I am in respectful agreement with the view taken by the above judgments to the effect that 13-B(2) are directory and not mandatory.

13. This court in a judgment in FAO No. 756 of 2003 118 (2005) DLT 492 = I (2005) DMC 571 (Delhi) in Pooja Gupta and Anr. v. Nil in respect of a petition under Section 13 of the Act had also held as follows:-

" The above statement of objects and reasons though made in the context of parity with Section 28 of Special Marriage Act also clearly indicates that the legislative intent was expeditious disposal of divorces by mutual consent. In my view as long as the court is satisfied as an essential reason for exemption for filing a divorce by mutual consent prior to expiry of one year after the marriage that the plea for mutual consent is not under coercion/intimation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. The other relevant considerations which may be considered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:-

a) the maturity and the comprehension of the spouses;

b) absence of coercion/ intimation/ undue influence;

c) the duration of the marriage sought to be dissolved;

d) absence of any possibility of reconciliation;

e) lack of misrepresentation or concealment.

f) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties".

14. Thus keeping in view the above findings of that and position of law laid down in the above decisions as well as the facts of the present case, the learned Additional District Judge should have waived the period of 6 months for the petition under section 13B(2) which was already on record along with petition under section 13B(1) and the compromise deed at the time of recording the joint statements of both the parties who had given the consent without any undue influence, coercion and pressure and when there was not even the remotest possibility of any reconciliation. All the parameters laid down by this Court in Pooja Gupta's case (supra) were satisfied. Coupled with the admitted prayer made by both the parties for waiver of the six month period permissible as per Pooja Gupta's case, the waiver ought to have been granted by the learned Additional District Judge who has failed to see through the illusory change of heart of the respondent/husband obviously with a view to spite his estranged spouse in spite of availing the benefits of the settlement which led to the joint petition for divorce by mutual consent. The impugned judgment loses sight of the fact that the husband has fully availed of the benefits of the mutual consent divorce by making the petitioner wife forego all the claims for maintenance for herself and her daughter and also withdrawing the criminal complaint against the husband. Thus, the Learned Additional District Judge was duty bound in law pass a decree of divorce by way of mutual consent which was the only remedy available in such a situation as the marriage between the parties was totally dead and had irretrievably broken down.

15. The judgment of the Learned Additional District Judge in permitting the respondent to withdraw the consent unilaterally after the filing of both the petitions under section 13B(1) and under section 13B(2) of the Act along with the compromise deed and joint statements of both the parties in this behalf, was challenged by the learned counsel for the petitioner to be not only contrary to the position in law but also contrary to the interest of justice.

16. The counsel for the petitioner has rightly assailed the judgment of the learned Additional District Judge for the following reasons:-

(a). That the respondent had himself filed the petition for judicial separation under section 10 of the Hindu Marriage Act.

(b). During the pendency of the said petition joint petition for divorce by mutual consent was filed under Section 13 and 13B(2) of the Hindu Marriage Act by both the parties along with the application under order 6 rule 17 CPC for converting the petition for judicial separation into petition for grant of decree of divorce by way of mutual consent together with affidavit and compromise deed between the parties.

(c). The period of six months as contemplated under section 13B(2) for moving the second motion was agreed to be waived and this was so orally submitted before the Learned Trial Court by both the parties. According to the unrebutted plea of the petitioner, the learned ADJ was pleased to grant the permission to place on record petition (IInd motion) under Section 13B(2) of the Act by waiving the stipulated period of six months as admitted by the respondent in his application dated 19.1.2004 d. Joint statement of the parties was recorded by the Learned ADJ whereby both the parties consented to dissolve their marriage by mutual consent and admitted to have settled their matrimonial disputes.

(e). During the pendency of the above petition for divorce the respondent had re-married and has even got a child from the second marriage.

f. That the parties to the present petition are living separately since 7.2.2002.

g. The marriage between the parties is dead and has irretrievably broke down.

h. There are bitter allegations and counter allegations between the parties.

i. That admittedly there are no grounds for withdrawal of the consent by the husband respondent. The consent given by the parties was not obtained by compulsion, force, fraud, coercion and undue influence and indeed the respondent/husband is estopped from backing out of the said consent as he has fully availed of the benefits of the settlement as detailed earlier in this judgment and as summarized in the succeeding sub-paragraph (j).

(j) That the respondent fully took advantage of the settlement by which the petitioner wife had forsaken all stridhan, maintenance for herself and the child and had further withdrawn her criminal complaint pursuant to the settlement.

(k). The respondent is involved in criminal cases under section 419/420/465/467/468/471 and 120B IPC registered at Ludhiana in Punjab and further involved in a Customs case under section 135 of the Customs Act. The respondent was arrested and sent to Judicial custody and while in transit remand to Punjab, he absconded and is not traceable till date.

(l).There is no public interest involved in maintaining the marriage as a fa+§ade, when the emotional basis for the marriage has disappeared by the conduct of the absconding husband who had already remarried inspite of attempting to withdraw unilaterally his consent and even has a child from his remarriage.

17. The learned Additional District Judge allowed the respondent to withdraw his consent unilaterally because of a misreading of the position of law laid down by the Hon'ble Supreme Court in (1991) DMC 313 (SC) = AIR 1992 SC 1904 in Sureshta Devi's case but in my view the said decision is not applicable in the present facts and circumstances of the case. In Sureshta Devi's case the wife had pleaded that her initial consent had been obtained by pressure and threats from the husband and a situation obtaining in the present case is that the husband cheated his wife in tricking her into a mutual consent divorce and after enjoying all benefits of the settlement, sought to back out of such consent. Consequently the position of law laid down in Sureshta Dev's case (supra) is inapplicable in the present case.

18. A reading of sub section (2) of 13B of the Act would show that the scheme of Section 13B of the Act does not envisage withdrawal of consent by one party. In the case of Nachhattar Singh v. Harcharan Kaur AIR 1996 Punjab and Haryana 201 it was held that ;

"The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such inquires as it thinks fit, that the petitioner was in fact presented by both the parties to the marriage, that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in sub-sec. (1) of S. 13B of the Act are fulfillle, it will not be open to a party to withdraw the consent. In the present case without making an inquiry under sub-sec. (2) the trial Court has dismissed the petition as withdrawn which could not be done merely on the asking of one party".

19. A similar view was also taken by this Court in Smt. Chander Kanta v. Hans Kumar and another in I (1988) DMC 509 = AIR 1989 Delhi 73 where it was held that;

"A petition presented under s. 13B(1) of the Act cannot be withdrawn by one party unilaterally. Of course, if the Court is satisfied that the consent was not a free consent and it was the result of force, fraud or undue influence then it is a different matter because in such a case the Court is empowered specifically to refuse to grant the decree. If one party is allowed to withdraw the consent even when other grounds, namely that the parties continue to live separately and have not been able to live together, still subsist and reconciliation is not possible then it will frustrate the very purpose of the enactment. Under S. 23(1)(bb), the court is empowered to grant the decree even in an undefended case if it is satisfied that the averments in the petition are true and the consent for mutual divorce has not been obtained by force, fraud or undue influence. If unilateral withdrawal of consent is permitted the Court will not be able to pass a decree in an undefended case".

20. Thus it is clear that it is settled law that unless it is shown by one party that his/her consent was as a result of force, fraud or undue influence, consent given for grant of divorce by mutual consent in the petition under section 13B(1) of the Act cannot be unilaterally withdrawn by the said party, which position of law has also been followed in vol. 41 (1990) Delhi Law Times 266 = II (1990) DMC 142 in the case of Rajrani v. Roop Kumar.

21. In (1997) DMC 491 (SC) = AIR 1997 SC 1266 in Ashok Hura v. Rupa Bipin Zaveru, the Hon'ble Supreme Court, while dealing with such questions of withdrawal of consent unilaterally by one party and a situation where it can be safely concluded that the marriage between the parties has been irretrievable broken and there was no chance of their coming together or living together, held that;

"We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake and that no love is lost between the parties, who have been fighting like "Kilkenny cats" and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under section 13B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards."

"Irretrievable breakdown of marriage is now considered, in the laws of number of countries, good ground of dissolving the marriage by granting a decree of divorce.

Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage."

The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage can not be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fa+§ade, when the emotional and other bounds which are of the essence of marriage have disappeared.

After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilllment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which may regulate their relationship in the changed circumstances"¦ (underlining supplied) In my view the impugned judgment totally loses sight of the above salutary principles of law laid down by the Hon'ble Supreme Court in Ashok Hura's. In my view the law which applied to the present case was the law laid down in Ashok Hura's case and not Sureshta Devi's case (supra) as wrongly held by the impugned judgment. The impugned judgment has deprived a wronged and cheated wife of an opportunity to work out the most satisfactory basis for regulating the lives of herself and her daughter as per the above judgment of the Supreme Court. A pedantic interpretation of the law has led to a situation which occasions the grossest miscarriage of justice in denying a young woman with her abandoned daughter an opportunity to start their life afresh. In Ashok Hura's case (supra), the Hon'ble Supreme Court dealt with the judgment of the Hon'ble Supreme Court in Sureshta Devi's case (supra) and observed as under:-

"It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13B of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact situation herein. The decision in Sureshta Devi case (AIR 1992 SC 1904) (supra) may require reconsideration in an appropriate case. We leave it there."

22. Furthermore, this Court cannot be a helpless spectator to the chicanery and duplicity of the respondent-husband who induced the hapless wife, the petitioner, to forego the maintenance claims of not only herself and her daughter but also duped her into agreeing to the withdrawal of the criminal complaints in the hope of starting her life afresh. The husband has by this conduct put the wife in a position of a huge disadvantage. In view of the position of the law as noted above, no spouse can unilaterally withdraw its consent for divorce by mutual consent when the grounds such as fraud, undue influence, force, misrepresentation and such consent not being free not having been pleaded and proved satisfactorily. In the present case, if the withdrawal of the consent by the respondent-husband is upheld, it will lead to an anomalous situation where the petitioner-wife who is law abiding is left high and dry without recourse to any remedy and saddled with a dead marriage whereas the respondent-husband who has resorted to fraud and misrepresentation enjoys his freedom and enjoys another marriage. The respondent-husband inspite of forsaking his mutual consent for divorce by remarrying has on his own showing committed a crime of bigamy under Section 494 of Indian Penal Code and is enjoying his life afresh whereas the wife is tethered to a dead marriage. Courts of law particularly a writ court under Article 227 in its power of superintendence must reach out to correct such obvious and gross miscarriage of justice to provide succor and relief to the petitioner-wife who otherwise will be left ruing the misfortune befallen on her by the interpretation of law in the impugned judgment. The Hon'ble Supreme Court has laid down the following parameters of interference by a High Court in petitions under Article 227 of the Constitution:-

(a). where the impugned order results in manifest injustice as per the decision in T.G. Telang v. R.S. Bhinde, AIR 1997 SC 1222 = 1997 (2) SCC 437 para 3 which reads as follows:-

"3. As would be apparent from the above narrative, the instant case does not involve any substantial question of law of general or public importance. Although counsel for the appellants has strenuously assailed the correctness of the findings of the Revenue Tribunal and of the High Court, we are unable to accede to his contention. We have not, despite careful consideration of the judgments and objections submitted to us, been able to discern any legal infirmity or error either in the decision of the Revenue Tribunal or of the High Court. It is a well settled rule of practice of this Court not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution."

23. In this view of the matter it is evident that the withdrawal of the consent by respondent is tainted with malafide, baseless and is unjust. Thus, it is a fit case where a decree of divorce by way of mutual consent should have been granted. Accordingly, the impugned orders dated 1.10.2003 and 31.3.2004 of the Learned Additional District Judge is set aside and the present petition is allowed and the marriage solemnized between the parties Rachana Jain and Neeraj Jain on 12.3.1996 is dissolved by decree of divorce under section 13B(2) of the Act.


24. The petition stands allowed and disposed of accordingly. Office to draw up the decree accordingly.

Wednesday, February 1, 2017

Can Consent may withdrawn in Mutual Consent Divorce u/s 13-B of Hindu Marriage Act 1955 ?

Consent cannot be withdrawn in Mutual Consent divorce u/s 13-B of Hindu Marriage Act.

. In the opinion of this Court, the following questions of law arise for
consideration by a division bench of this Court :-

A) Whether a party, which has under a settlement agreement decreed by
a Court undertaken to file a petition under Section 13B(1) or a motion
under Section 13B(2) of the Act, 1955 or both and has also undertaken to
appear before the said Court for obtaining divorce can be held liable for
contempt, if the said party fails to file or appear in the petition or motion or
both to obtain divorce in view of the option to reconsider/renege the
decision of taking divorce by mutual consent under Section 13B(2) of the
Act?

B) Whether by undertaking before a Court to file a second motion under
Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an
undertaking to a Court to that effect in a separate court proceeding, a party
waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes,
whether such right can be waived by a party under Section 13B(2) of the
Act, 1955?

C) Whether any guidelines are required to be followed by the Court
while recording the undertaking/agreement of the parties with respect to a
petition under Section 13B(1) or a motion under Section 13B(2) of the Act,
1955 or both for obtaining divorce?

D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia
Cont. Cas.(C) 772/2013 & Ors. 

(supra) are good law in view of the doubts expressed by this Court in paras

19 to 28 and in view of the Division Bench judgment in Dinesh Gulati
--------------------------------------------------------------------------------------------------------------------------

Cont. Cas.(C) 772/2013 & Ors. Page 1 of 29
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. APPL. 8610/2015 in CONT.CAS(C) 772/2013
RAJAT GUPTA ..... Petitioner
Through Mr. Prashant Mendiratta with
Ms. Poonam Mehndiratta and
Mr. Harshwardhan Pandey,
Advocates
versus
RUPALI GUPTA ..... Respondent
Through Mr. Ankur Mahindro with
Mr. Shresth Choudhary,
Ms. Megha Agarwal, Ms. Devna,
Mr. Adhirath and Mr. Aarzoo Aneja,
Advocates
WITH
+ CONT.CAS(C) 584/2014
KAMAL GODWANI ..... Petitioner
Through Mr. F.K. Jha with Mr. Sarvesh,
Advocates
versus
ANNU BHARTI ..... Respondent
Through Mr. B.K. Srivastava and Mr.Rajeev
Katyain, Advocates.
AND
+ CONT.CAS(C) 483/2016 & C.M. APPLS. 15724/2016, 28622/2016,
42418/2016
W CDR SITANSHU SINHA ..... Petitioner
Through Mr.Ashish Virmani with Ms.Paridhi
Dixit, Advocates.
versus
Cont. Cas.(C) 772/2013 & Ors. Page 2 of 29
PRACHI SINGH @ PRACHI SINHA ..... Respondent
Through Mr.Ajit Kumar with Ms.Nutan
Kumari, Advocates.
AND
+ CONT.CAS(C) 484/2016 & C.M. APPLS. 15728/2016, 42419/2016
WG CDR SITANSHU SINHA ..... Petitioner
Through Mr.Ashish Virmani with Ms.Paridhi
Dixit, Advocates.
versus
PRACHI SINGH @ PRACHI SINHA ..... Respondent
Through Mr.Ajit Kumar with Ms.Nutan
Kumari, Advocates.
AND
+ CONT.CAS(C) 648/2014
DR. ARUN SHARMA ..... Petitioner
Through Mr.Sunil Mittal, Sr.Advocate with
Ms.Seema Seth and Mr.Dhruv
Grover, Advocates.
versus
POOJA SHARMA ..... Respondent
Through Mr. Prashant Mendiratta with
Ms. Poonam Mehndiratta and
Mr. Harshwardhan Pandey,
Advocates
AND
+ CONT.CAS(C) 1116/2016
AMRITA KAUR SAXENA ..... Petitioner
Through Mr.Amit Grover, Advocate.
Cont. Cas.(C) 772/2013 & Ors. Page 3 of 29
versus
GAURAV SAXENA ..... Respondent
Through Ms.Mrinalini Khatri, Advocate.
AND
+ CONT.CAS(C) 1147/2016
NAVEEN KUMAR JAIN ..... Petitioner
Through Mr.C.Rajaram with Mr.Sashi Panwar
and Mr.T.Kanniappan, Advocates.
versus
INDU JAIN ..... Respondent
Through Mr. Parvinder Chauhan, Advocate
with Mr. Nitin Jain, Advocate.
AND
+ CONT.CAS(C) 1251/2016
VIKAS SHARMA ..... Petitioner
Through Mr.Atul Kharbanda, Advocate.
versus
SHALINI CHHABRA ..... Respondent
Through Mr.Jitendra Kumar Jha with
Mr.Rupam Roy, Advocates.
AND
+ CONT.CAS(C) 484/2014
DEEPAK BATRA ..... Petitioner
Through Mr.Akhilesh Aggarwal, Advocate.
Cont. Cas.(C) 772/2013 & Ors. Page 4 of 29
versus
SWATI BATRA ..... Respondent
Through
% Date of Decision: 09th January, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN, J: (Oral)
1. Present batch of contempt petitions has been filed alleging wilful
disobedience of undertakings given by a spouse to appear, sign and file both
the 13B(1) petition and 13B(2) motion of the Hindu Marriage Act, 1955
(hereinafter referred to as "Act, 1955"). These undertakings have been
accepted by a Court either at Section 13B(1) stage or incorporated in a
consensual decree. In all cases except Cont.Cas(C) Nos.1147/2016 and
1251/2016 the undertakings are against consideration.
2. Mr. Prashant Mendiratta, learned counsel for Mr. Rajat Gupta and
Ms. Pooja Sharma states that the Contempt of Courts Act, 1971 defines civil
contempt to be a wilful breach of undertaking given to a Court or order of a
Court. He submits that undertakings given to Courts and orders passed by
Courts are to be complied with in all circumstances.
3. According to him, the consent for mutual divorce by way of joint
petition under Section 13B of the Act, 1955 cannot be withdrawn by a party
for mala fide and extraneous reasons. In support of his submission, he relies
upon a judgment of the Bombay High Court in Rajesh Pratap Sainani Vs.
Mrs. Bhavna, 2008 SCC OnLine Bom 800 wherein it has been held as
under:-
― 34. The Family Court cannot be helpless spectator and
duplicity of the petitioner-husband to induce the hapless wife, the
respondent to waive maintenance claim for not only herself and
her son, also compelled her to withdraw the criminal complaint
in the hope of starting her life afresh. The husband by his
conduct has caused the wife huge disadvantage. No spouse can
unilaterally, wilfully be allowed to withdraw consent even on the
grounds; such as fraud, undue force, representation unless
grounds are proved satisfactorily, hi the present case, if the
withdrawal of consent by the petitioner-husband is upheld, it will
cause anomalous situation and serious prejudice to the
respondent-wife, who is law abiding person. She will be left high
and dry without recourse to any remedy and saddled with dead
marriage. The respondent-husband has resorted to fraud and
misrepresentation which cannot be permitted by the Courts of
Law and equity.‖
4. Mr. Mendiratta further submits that in circumstances similar to the
present batch of matters, the Delhi High Court in Avneesh Sood Vs. Tithi
Sood, Cont.Cas(c) 559/2011 and Shikha Bhatia Vs. Gaurav Bhatia & Ors.,
2010 SCC OnLine Del 1962 has held that contempt is attracted for breach of
undertaking accepted by the Court to file a petition as well as second motion
for divorce. The relevant portion of the aforesaid judgments is reproduced
hereinbelow:-
A) Avneesh Sood (supra) wherein it has been held as under:-
―46. As aforesaid, the respondent was not bound to give the said
undertaking to the Court. However, having given the same,
voluntarily and consciously, with a view to derive the benefit of
the agreement with the petitioner, if the respondent walks out of
the same, only for the reason that she has changed her mind with
regard to the custody/visitation rights of the minor child, she
must take the consequences. Pertinently, even now, the
respondent is not averse to proceeding with the mutual divorce
petition and filing a second motion petition. However, she wants
to do the same on her own terms in relation to alimony and
custody/visitation rights, contrary to her earlier agreement which
formed the basis of the first motion petition. It is, therefore, clear
that her decision to withhold her consent for moving the second
motion petition does not stem out of any new development or
mitigating circumstance which would justify the same, but only
on account of her having a change of mind on the aforesaid two
aspects. It is not that the respondent has decided to continue with
the marriage with the petitioner. She has not expressed any
desire to resume marital life with the petitioner. It is not her case
that her initial decision to move the mutual consent divorce
petition was a decision taken by her in haste or was a mistake.
Even now she does not dispute the fact that the marriage has, in
fact, broken down but she wants to use her right not to give
consent for the second motion petition as a bargaining point,
which the petitioner prefers to call a black mail tactics.
47. No doubt the law gives the right to both the parties to take a
decision whether, or not, to continue with the mutual consent
divorce proceedings, and for that purpose a cooling off period of
at least 6 months is provided under the scheme of the Act. It does
not mean that an undertaking given by them to the Court to
continue their consent even for moving the second motion
petition can be said to be an illegal consent or undertaking or an
undertaking recorded by the Court without jurisdiction. She,
while giving her undertaking, did not undertake to commit an
illegality, or to do anything which is barred by law. No one
compelled the respondent to give the said undertaking. She could
have kept her options open whether, or not, to give her consent
for moving the second motion petition at the end of the cooling of
period of six months. But she did consciously decide to give the
said undertaking to the Court. This she did to derive benefit
under the agreement with the petitioner.
Cont. Cas.(C) 772/2013 & Ors. Page 7 of 29
48. If a party is permitted to resile from an undertaking given to
the Court, in pursuance of an agreement arrived at between the
parties, without any penal consequences, the same would
completely destroy the sanctity attached to such solemn
undertakings, and would encourage dishonesty and disrespect
for the judicial process. It would also undermine the majesty and
authority of courts, and instill doubts in the minds of the
litigating public with regard to the efficacy of the judicial
process and, in particular, with regard to the process of
accepting undertakings by the Court and of the efficacy of the
undertakings given to the Court by a party, and the acceptance
thereof by the Court, as a part of a settlement process. It was on
account of the respondent's conduct of voluntarily giving her
undertaking to the Court to abide by her settlement, and the
acceptance thereof by the Court, which led the petitioner to
agree to pay an amount of Rs. 7 crores in all to the respondent,
and to part with a huge amount of Rs. 1.5 cores at the first
motion stage. The respondent cannot make mockery of the law
and mock at the Courts by now claiming that she has decided not
to give her consent for moving the second motion petition, and
that too for the reasons that she wants to renegotiate the terms of
settlement, both in relation to her monetary compensation and
custody/visitation rights in respect of the minor child. It is clear
that the respondent has exploited and abused the process of the
Court to serve her purpose, without intending to adhere to her
solemn undertaking given to the Court.
B) Shikha Bhatia (supra) wherein it has been held as under:-
―26. In this case, the respondents had entered into an agreement
with the petitioner herein with open eyes and the terms of the
agreement have been acted upon. No doubt the law provides that
a party has a right to withdraw the consent given but the reasons
for withdrawal as in the case of Smt. Sureshta Devi (supra) was
that the wife had been coerced and forced to enter into signing
the petition for mutual consent without allowing her to consult
her family members nor she was permitted to bring her family
members to Court at the time when the statement was made,
besides that the wife at the first opportunity available withdraw
her consent. Crime against women are on the rise. Keeping in
view the facts of this case, if the husband respondent No. 1 is
allowed to resile from the settlement recorded in Court on the
basis of express statement and representation of respondent No.
1 to the effect of settlement between the parties, the Court
considered the anticipatory bail application of the respondents
favourably, it would amount to allowing the respondent to steal
an order of bail from the Court and thus interfering in the course
of justice. It would encourage unscrupulous persons and would
certainly open flood gates for such litigants, to sham settlement
at the time when the bail application is being considered and
later on simply plead that the settlement was not out of free will.
The respondents cannot be permitted to make a mockery of the
legal system and such willful and deliberate disobedience of the
order of the Court would weaken the rule of land. The mindset of
the respondent No. 1 and his conduct is established by the
statement made during cross-examination that the settlement was
signed by him as was asked by his lawyer, that it was necessary
for the anticipatory bail in the criminal cases. This itself speaks
volume of the legal advice rendered and the conduct of the
respondents. In the case of Kapildeo Prasad Sah v. State of
Bihar, (1999) 7 SCC 569, it was held as under:
―For holding the respondents to have committed contempt,
civil contempt at that, it has to be shown that there has been
wilful disobedience of the judgment or order of the Court.
Power to punish for contempt is to be resorted to when
there is clear violation of the Court's order. Since notice of
contempt and punishment for contempt is of far reaching
consequence, these powers should be invoked only when a
clear case of wilful disobedience of the Court's order has
been made out. Whether disobedience is wilful in a
particular case depends on the facts and circumstances of
that case. Judicial orders are to be properly understood and
complied. Even negligence and carelessness can amount to
disobedience particularly when attention of the person is
drawn to the Court's orders and its implication.
Disobedience of Court's order strikes at the very root of
Cont. Cas.(C) 772/2013 & Ors. Page 9 of 29
rule of law on which our system of governance is based.
Power to punish for contempt is necessary for the
maintenance of effective legal system. It is exercised to
prevent perversion of the course of justice.
In his famous passage, Lord Diplock in Attorney
General v. Times Nexvspapers Ltd., (1973) 3 All.E.R. 54
said that there is also ―an element of public policy in
punishing civil contempt, since administration of justice
would be undermined if the order of any Court of law could
be disregarded with impunity‖. Jurisdiction to punish for
contempt exists to provide ultimate sanction against the
person who refuses to comply with the order of the Court or
disregards the order continuously. Initiation of contempt
proceedings is not a substitute for execution proceedings
though at times that purpose may also be achieved.
No person can defy Court's order. Wilful would exclude
casual, accidental bona fide or unintentional acts or
genuine inability to comply with the terms of the order. A
petitioner who complains breach of Court's order must
allege deliberate or contumacious disobedience of the
Court's order.
xxxx xxxx xxxx xxxx
31. It may also be noticed that respondent No. 1 has not signed
the first motion it cannot be said that the second motion would
have been filed without the gap of six months. This submission is
also accordingly rejected. Since there is no quarrel with regard
to the proposition that there has to be gap of six months between
the first motion and the second motion, the judgment relied upon
by Counsel for the respondents Smt. Sureshta Devi v. Om
Prakash, (1991) 2 SCC 25 as also Anil Kumar Jain (supra)
require no discussion as in this case the first motion was not
signed by the parties."
5. Mr. Mendiratta also submits that it is a trite position in law that a
Cont. Cas.(C) 772/2013 & Ors. Page 10 of 29
person can contract themselves out of a statutory right intended for their
benefit provided such act does not impinge on the public policy. Release of
statutory right by a person is also called waiver. According to him, a person
is said to waive his/her statutory right if he/she voluntarily relinquishes the
same in consideration of some act by another person. A waiver of right,
based upon contract, gives rise to a cause of action. A contract under which
a person has waived his/her right is valid and enforceable provided such
waiver does not impinge upon public policy. In support of his submission,
he relies upon the following judgments:-
(i) Shri Lachoo Mal Vs. Shri Radhey Shyam, (1971) 1 SCC 619
wherein the Supreme Court has held as under:-
― 6. The general principle is that every one has a right to waive
and to agree to waive the advantage of a law or rule made
solelyfor the benefit and protection of the individual in his
private capacity which may be dispensed with without
infringing any public right or public policy. Thus the maxim
which sanctions the non-observance of the statutory provision
is cuilibet licet renuntiare juri pro se introducto. (See Maxwell
on Interpretation of Statutes, Eleventh Edn., pp. 375 and 376).
If there is any express prohibition against contracting out of a
statute in it then no question can arise of any one entering into
a contract which is so prohibited but where there is no such
prohibition it will have to be seen whether an Act is intended to
have a more extensive operation as a matter of public
policy……‖
(ii) Krishna Bahadur Vs. Purna Theatre & Ors., (2004) 8 SCC 229
wherein the Supreme Court has held as under:-
―10. A right can be waived by the party for whose benefit certain
requirements or conditions had been provided for by a statute
subject to the condition that no public interest is involved therein.
Whenever waiver is pleaded it is for the party pleading the same
to show that an agreement waiving the right in consideration of
some compromise came into being. Statutory right, however, may
also be waived by his conduct.‖
(iii) Union of India Vs. Pramod Gupta (D) By Lrs. & Ors., (2005) 12
SCC 1 wherein the Supreme Court has held as under:-
―111. It is, therefore, not correct to contend that there cannot be any
waiver of the right to claim interest. Statutory provisions are made for
payment of interest with a view to compensate a party which had
suffered damages owing to a positive action or inaction of the other
resulting in blockade of money which he would otherwise have
received. A party which itself represents before the court of law that it
would not claim interest with a view to obtain an order of stay which
would be for its own benefit, in our opinion, could not be permitted to
take advantage of its own wrong. (See Sushil Kumar v. Rakesh
Kumar [(2003) 8 SCC 673] and Laxminarayan R. Bhattad v. State of
Maharashtra [(2003) 5 SCC 413].)‖

6. He points out that in Municipal Corporation of Greater Bombay Vs.
Dr. Hakimwadi Tenants’ Association and Ors., (1988) Supp. SCC 55, the
Supreme Court held that procedure under Section 5A of the Land
Acquisition Act with respect to hearing of objections to the proposed land
acquisition could be waived. The relevant portion of the judgment relied
upon is reproduced hereinbelow:-
―18. The right to claim enhanced compensation or for that
matter the right to seek reference to the civil Court with a view to
get the enhanced compensation is a right intended solely for the
benefit of the landholder. It is purely a personal right conferred
on him. If such right is waived or given up by his voluntary
action, no considerations of public policy would arise, much less
would there be any negation of public rights. Nor is there any
prohibition in law against waiving the right conferred on him
Cont. Cas.(C) 772/2013 & Ors. Page 12 of 29
under Section 18. We do not therefore visualise any legal
impediment for applying the doctrine of waive.

7. Mr. Sunil Mittal, learned senior counsel for petitioner Dr. Arun
Sharma in Cont. Cas.(C) 648/2014 states that in pursuance to the 59th Report
(1974) of the Law Commission, Order 32A was inserted by Act 104 of 1976
in Code of Civil Procedure to deal with the matters concerning family
disputes. He points out that simultaneously in 1976, Section 13B was
introduced in the Act, 1955 to allow dissolution of marriage by mutual
consent. According to him, as the legislature felt the need in public interest
to establish Family Courts for speedy settlement of family disputes, it
enacted Family Court Act, 1984. He submits that all the aforesaid
amendments were brought about in law to encourage settlement between the
parties in Family Law matters.

8. According to Mr. Sunil Mittal, wherever the parties have signed the
mediation settlement and the same has been accepted/approved by the
referral court, it has to be taken as if the parties to the settlement had waived
their individual right to withdraw their consent.

9. On the other hand, Mr. Ankur Mahindro, learned counsel for
respondent in Cont. Cas. (C) No. 772/2013 submits that if one of parties
refuses to join/give consent for recording of statement under Section 13B(2)
of the Act, 1955, then the Family Court cannot pass a decree of divorce
based upon mutual consent as contemplated under Section 13B of the Act,
1955 and such an act cannot constitute contempt. In support of his
submission, he relies upon the judgement of the Division Bench of this
Court in Dinesh Gulati Vs. Ranjana Gulati, MAT. APP. (F.C.) 70/2016
decided on 2
nd August, 2016.

10. Mr. Ankur Mahindro submits that the concept of marriage is not a
contract under Hindu law and despite the inclusion of 13B of the Act, 1955,
the intention of the legislature is not to allow divorce on grounds of
irreconcilable differences.

11. He further submits that Section 13B of the Act, 1955 is a complete
code in itself which provides for cause of action, grounds and reasons which
are required to be satisfied by the parties, the procedure to be followed by
the Court and the premise which ought to be taken into consideration by the
Court before it passes a decree of divorce on the ground of mutual consent
and jurisdiction of the Court to grant a relief under the provisions of the Act,
1955 is controlled by legislative limitation of the respective provisions. In
support of his submission, he relies upon following judgments:-
A) Miten S/o. Shyamsunder Mohota (Goidani) and Anr. Vs. Union of
India, 2008 (55) MhLj 27 wherein it has been held as under:-
"23.......Prior to the amendment Act of 1976, the remedy of
divorce under Hindu Marriage Act was entirely based upon guilt
theory i.e. where one party accused other of having committed
acts and deeds which would entitle other for seeking divorce in
compliance with the provisions of the Act. The 1976 amendments
added a concept of mutuality in relation to dissolution of
marriage. The purpose of introducing mutuality was not to
dissolve the marriages between the newly wed at the drop of the
hat without any reason/justification............ The purpose of
providing time is to give an opportunity to the parties to
harmonise their lives rather than taking steps hastily to destroy
the institution of marriage and convert Hindu marriage purely to
a contractual relationship."
B) Principal Judge, Family Court, Nagpur Vs. Nil, AIR 2009 BOM 12
wherein it has been held as under:-
"14. The Supreme Court in the case of Smt. Sureshta Devi termed
this period as a waiting period, obviously, intended to give
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 second thought and change mind not to proceed
with the petition. The mutual consent ought to continue from the
date of institution of first motion till passing of the decree. This is
the significance of the provisions of section 13B(2) of the Act. It
will not only be unjust but would be impermissible on accepted
norms of statutory interpretation that this period of six months is
treated as optional, condonable or could be waived at the request
of the parties. The law must be given a meaning that would be
applicable and acceptable generally and not to a particular case.
Firstly, the legislature has not provided any power of relaxation
to the Court in regard to the stated period of six months under
section 13B(2). Secondly, if this procedure is adopted at the
behest of the parties by the Court, it will amount to denial of a
statutory benefit of rethinking. The period of six months is the
product of the legislature and the Courts have always upheld its
validity. To waive or abolish by judicial dictum a specific
provision of the legislature would amount to negating a statutory
provision which is otherwise constitutional and cannot easily be
dropped in reality. No prejudice is caused to the parties by merely
waiting for a short period of six months before they take a vital
and pertinent decision in regard to their marriage which is a
social sacrament coupled with civil rights and obligations and
which they had entered upon voluntarily and happily. Impulsive
and impatient decisions rarely guide the parties to the logical and
correct decision. They must have time to ponder over their
decision and reassure themselves that the decision of dissolving
their marriage is correct and needs to be implemented. For
arriving at such a vital decision, the period of six months is to be
held as mandatory and in conformity with the legislative intent
expressed in no uncertain terms in the relevant provisions.

15. We can hardly see any reason for giving an unnecessary
liberal interpretation to the provisions of section 13B(2) of the Act
by reading into these provisions power of relaxation with the
Court. Wherever the legislature wanted to grant such a
relaxation, it has undoubtedly spelt out so in the provisions itself.
Reference can be made in this regard to section 14 of the Act
wherein extreme hardship or cruelty has been given as grounds
for the Court to entertain the petition by granting relief to present
the petition for divorce even before the expiry of the specified
period of one year. If that being the scheme of the Act, we are
unable to assent to the view that the power of relaxation or waiver
should be read into section 13-B of the Act in face of the clear
language of the provision and the judgment of the Supreme Court
in the case of Smt. Sureshta Devi. Legislative scheme and object
of the Act shows that object of the Act is to attribute social and
matrimonial security to the institution of marriage rather than to
dissolve marriage at the drop of the hat. ........"
12. Mr. Ankur Mahindro submits that waiver is a question of fact and it
must be properly pleaded and proved. He states that in the present cases
neither any plea of waiver has been pleaded nor the factual foundation for it
has been laid in the pleadings. In support of his submission, he relies upon
Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh & Ors.,
(1979) 2 SCC 409.
13. Mr. Ankur Mahindro also submits that the public policy of India as
enshrined in Section 13B of the Act, 1955 does not allow marriage to be
dissolved, in any other manner, except in accordance with its provisions.
14. He points out that the Kerala High Court in the case of K.V.
Janardhanan Vs. N.P. Syamala Kumari & another, M.F.A. No. 386/1988
decided on 15th January, 1990 has observed that an agreement to dissolve a
marriage in derogation of the provisions of the Act, 1955 is violative of the
public policy of India. The relevant portion of the judgment relied upon by
him is reproduced hereinbelow:-

"6. But compromise between parties in divorce proceedings,
agreeing with each other to dissolve the marriage was never
regarded in law as consistent with public policy. Even evidence
given by parties admitting matrimonial offences was frowned at
by the courts. Lord Mansfield expressed his disapproval against
such admission of parties themselves in divorce proceedings
way back in 1777 (vide Goodright's case, (1) COWP 591). The
same was the stand adopted by the House of Lords
in Russel v. Russel, (1924) AC 687. The legislative policy, in
India has not changed from the aforesaid approach. That is
why the statutes governing law of divorce even now insist that
the court should guard against collusion between parties for
wangling unmerited divorce decrees. The Hindu Marriage Act
with all its progressive innovations still retains the provision
which cautions the court to guard against collusion between
spouses. Marriage as an institution has a bearing on the society
and in divorce proceedings the parties are not actually
restricted to the spouses alone since their children are also
affected persons. This is one of the main reasons which stands
against such compromises. Section 13B in the Act is not to be
understood as carte blenche granted by Parliament to the
spouses to dissolve the marriage on mutual agreement. The
said provision contains certain other postulates also despite the
dominance of mutual agreement factor therein. Section 23 of
the Act emphasises that the court can pass a decree only on
satisfaction that any of the grounds for granting relief exists.
The said section imposes a duty on the court to consider and
decide on the existence or non-existence of certain other factors
enumerated therein. The closing words in Section 23(1) reflects
the Parliament's concern in the matter. Those words are these:
―then, an in such a case, but not otherwise, the court shall
decree such relief accordingly‖. The prohibition incorporated
in the paranthetical clause is eloquent and cannot be
overlooked."
15. He states that the Punjab & Haryana High Court in Usha Devi Vs.
Mahinder, Criminal Revision No. 2362 of 2008 (O&M) decided on 1
st
Cont. Cas.(C) 772/2013 & Ors. Page 17 of 29
July, 2009 has held that a divorced wife cannot waive its claim to
maintenance under Section 125 Cr. P.C. by making a statement to this
effect, at the time of divorce. The relevant portion of the judgment relied
upon by him is reproduced hereinbelow:-
"A perusal of these extracts leaves no manner of doubt that a
statement made by a wife, giving up her right of maintenance or
an agreement to that effect would not estop a wife, whether
divorced or otherwise, from filing a petition under Section
125 of the Code. Such a statement or agreement would be
opposed to public policy and would violate Section 23 of the
Indian Contract Act , 1872 being an agreement unenforceable in
law. Any conclusion to the contrary would be opposed to the
statutory provisions of the Act and would be violative of the
public policy that underlines the provisions of Section 125 of the
Code."
16. Mr. Ankur Mahindro lastly submits that the Court has no jurisdiction
to go into the bona fides or reasonableness of withdrawal of consent and the
Court cannot adjudicate upon the merits of such withdrawal. In support of
his submission, he relies upon the judgment of the Division Bench of the
Kerala High Court in Rajesh R. Nair Vs. Meera Babu, AIR 2014 Ker 44
wherein it has been held as under:-
"18. The further question to be considered is whether once
consent is given and is later withdrawn by one of the parties,
whether the Court can enquire into the bona fides or otherwise
of the withdrawal of the consent. By providing that the enquiry
under Section 13B(2) shall be only if consent is not withdrawn,
the statute specifically recognizes the right of the parties to
withdraw the consent even at the stage of the enquiry
contemplated under Section 13B(2). That right available to the
parties is an unqualified right and for any reason whatsoever, if
the parties or one of them, choose to withdraw their consent,
such withdrawal of consent is in exercise of the right available
Cont. Cas.(C) 772/2013 & Ors. Page 18 of 29
under Section 13B(2). If that be so, it is not for the court to
probe into the bona fides or reasonableness of withdrawal of
consent and once consent is withdrawn, the only option
available to the Court is to close the matter at that stage. If that
be the legal position, we are unable to find any fault on the part
of the Family Court in having dismissed the petition on the
ground of non-compliance of the requirement of Section 13B(2)
of the Act."

17. In rejoinder, Mr. Sunil Mittal, learned senior counsel for petitioner
submits that the Division Bench judgment in Dinesh Gulati (supra) is per
incuriam inasmuch as it has not taken note of the judgment of this Court in
Avneesh Sood (supra) and Shikha Bhatia Vs. Gaurav Bhatia, 2011 SCC
OnLine Del 1014.

18. He further submits that the judgments relied upon by learned counsel
for respondent are not good law as they have not considered the effect of the
judgment of the Supreme Court in the case of Afcons Infrastructure Ltd. &
Anr. Vs. Cherian Varkey Construction Co. (P) Ltd. & Ors., (2010) 8 SCC
24 wherein it has been held as under:-
"38. The other four ADR processes are non-adjudicatory and the
case does not go out of the stream of the court when a reference
is made to such a non-adjudicatory ADR forum. The court
retains its control and jurisdiction over the case, even when the
matter is before the ADR forum. When a matter is settled
through conciliation, the settlement agreement is enforceable as
if it is a decree of the court having regard to Section 74 read
with Section 30 of the AC Act. Similarly, when a settlement takes
place before the Lok Adalat, the Lok Adalat award is also
deemed to be a decree of the civil court and executable as such
under Section 21 of the Legal Services Authorities Act, 1987.
Though the settlement agreement in a conciliation or a
settlement award of a Lok Adalat may not require the seal of
approval of the court for its enforcement when they are made in
Cont. Cas.(C) 772/2013 & Ors. Page 19 of 29
a direct reference by parties without the intervention of court,
the position will be different if they are made on a reference by a
court in a pending suit/proceedings. As the court continues to
retain control and jurisdiction over the cases which it refers to
conciliations, or Lok Adalats, the settlement agreement in
conciliation or the Lok Adalat award will have to be placed
before the court for recording it and disposal in its terms.
39. Where the reference is to a neutral third party (―mediation‖
as defined above) on a court reference, though it will be deemed
to be reference to Lok Adalat, as the court retains its control and
jurisdiction over the matter, the mediation settlement will have
to be placed before the court for recording the settlement and
disposal. Where the matter is referred to another Judge and
settlement is arrived at before him, such settlement agreement
will also have to be placed before the court which referred the
matter and that court will make a decree in terms of it.
40. Whenever such settlements reached before non-adjudicatory
ADR fora are placed before the court, the court should apply the
principles of Order 23 Rule 3 of the Code and make a
decree/order in terms of the settlement, in regard to the subjectmatter
of the suit/proceeding. In regard to matters/disputes
which are not the subject-matter of the suit/proceedings, the
court will have to direct that the settlement shall be governed by
Section 74 of the AC Act (in respect of conciliation settlements)
or Section 21 of the Legal Services Authorities Act, 1987 (in
respect of settlements by a Lok Adalat or a mediator). Only then
such settlements will be effective."

19. Having heard learned counsel for the parties, this Court is of the view
that it is first necessary to determine as to whether Section 13B of the Act,
1955 postulates mutuality/consent for divorce to continue till the time the
decree of divorce is passed and if so, whether such a condition precedent
incorporates a legislative policy which cannot be waived by either of the
spouses, even for valuable consideration.

20. Consequently, it is essential to analyse Section 13B of the Act, 1955.
The said Section reads as under:-
"13B. Divorce by mutual consent.—(1) Subject to the
provisions of this Act 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.
(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."

21. In the opinion of this Court, the consent given by the parties either at
the time of execution of a settlement agreement bearing the imprimatur of a
Court or at the time of filing of the petition under Section 13B(1) of Act,
1955 for divorce, has to subsist till the date the decree of divorce is issued.
The period of waiting ranging from six to eighteen months is intended to
give an opportunity to the parties to reflect/renege and if one of the parties
does not wish to proceed ahead with the divorce during this period, then
divorce cannot be granted. Further, the Court has to be satisfied about the
Cont. Cas.(C) 772/2013 & Ors. Page 21 of 29
bona fide and consent of the parties till the date of decree - and if it is not so,
the Court gets no jurisdiction to pass a decree for divorce. In fact, the
Supreme Court in Smt. Suresta Devi Vs. Om Prakash, (1991) 2 SCC 25 has
held as under:-
"13. 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 a party to the joint motion under subsection
(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 bona
fides 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.

14. 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 mutuality 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's Laws of England, 4th edn.,
vol. 13 para 645; (ii) Rayden on Divorce, 12th edn., vol. 1, p.
291; and (iii) Beales v. Beales [(1972) 2 All ER 667, 674].
15. In our view, the interpretation given to the section by the
High Courts of Kerala, Punjab and 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."'
(emphasis supplied)
22. The aforesaid view has been reiterated by the Supreme Court in the
case of Hitesh Bhatnagar Vs. Deepa Bhatnagar, (2011) 5 SCC 234.
23. The Supreme Court in the case of Anil Kumar Jain Vs. Maya Jain,
(2009) 10 SCC 415 has also held that the period of six months between
filing a petition of divorce by mutual consent under Section 13B(1) of the
Act, 1955 and grant of decree of divorce under Section 13B(2) of the Act,
1955 cannot be waived off by the parties or by any civil court or High Court.
The relevant portion of the said judgment is reproduced hereinbelow:-
Cont. Cas.(C) 772/2013 & Ors. Page 23 of 29
"29. In the ultimate analysis the aforesaid discussion throws up
two propositions. The first proposition is that although
irretrievable breakdown of marriage is not one of the grounds
indicated whether under Sections 13 or 13-B of the Hindu
Marriage Act, 1955 for grant of divorce, the said doctrine can
be applied to a proceeding under either of the said two
provisions only where the proceedings are before the Supreme
Court. In exercise of its extraordinary powers under Article 142
of the Constitution the Supreme Court can grant relief to the
parties without even waiting for the statutory period of six
months stipulated in Section 13-B of the aforesaid Act. This
doctrine of irretrievable breakdown of marriage is not
available even to the High Courts which do not have powers
similar to those exercised by the Supreme Court under Article
142 of the Constitution. Neither the civil courts nor even the
High Courts can, therefore, pass orders before the periods
prescribed under the relevant provisions of the Act or on the
grounds not provided for in Sections 13 and 13-B of the Hindu
Marriage Act, 1955.

30. The second proposition is that although the Supreme Court
can, in exercise of its extraordinary powers under Article 142
of the Constitution, convert a proceeding under Section 13 of
the Hindu Marriage Act, 1955, into one under Section 13-B and
pass a decree for mutual divorce, without waiting for the
statutory period of six months, none of the other courts can
exercise such powers. The other courts are not competent to
pass a decree for mutual divorce if one of the consenting
parties withdraws his/her consent before the decree is passed.
Under the existing laws, the consent given by the parties at the
time of filing of the joint petition for divorce by mutual consent
has to subsist till the second stage when the petition comes up
for orders and a decree for divorce is finally passed and it is
only the Supreme Court, which, in exercise of its extraordinary
powers under Article 142 of the Constitution, can pass orders
to do complete justice to the parties."
(emphasis supplied)


24. Further, if the submission of the petitioners is accepted then it would
amount to applying two contrary parameters inasmuch as though the parties
would be asked to wait for the mandatory period of six months, yet at the
same time neither of the parties would be allowed to rethink or go back on
their undertaking during the waiting period, i.e., between allowing the
petition under Section 13B(1) and before filing of motion under Section
13B(2) of the Act, 1955. In the opinion of this Court, a strict enforcement of
undertaking/settlement agreement/consent decree would make the
mandatory waiting period otiose and defeat the statutory object to rethink
and reconsider the decision to go ahead with mutual divorce before
pronouncement of decree under Section 13B(2) of the Act, 1955.

25. This Court is of the opinion that the legislative intent is not that a
marriage should be dissolved only on the basis of consent given in a prior
settlement agreement bearing the imprimatur of a Court or at the stage of
Section 13B(1) petition just because it was coupled with consideration.

26. Undoubtedly, as held in in Avneesh Sood (supra) and Shikha Bhatia
(supra), no litigant can be allowed to wriggle out of a solemn undertaken
given to a Court and orders of the Courts have to be obeyed until and unless
they are set aside in appeal/revision, yet this Court is of the view that the
statutory option to reflect and retract cannot be taken away just because one
of the parties has given an undertaking or has accepted either some money
or benefit at the 13B(1) stage. However, one cannot retain a benefit
received at the 13B(1) stage, if he/she is not willing to go ahead with the
second motion. A party who has developed second thoughts has to return
the benefit received either under the settlement agreement or at 13B(1)
stage. But, in the opinion of this Court, it would not be proper to force the
party who has developed second thoughts in accordance with the option
given by the statute, to go ahead with the divorce at the pain of contempt.
Consequently, this Court has grave doubts as to the applicability of the
judgment in Afcons Infrastructure Ltd. & Anr. (supra) to the present batch
of matters.

27. Also, if the statutory requirement is of continuous consent till the
second motion is allowed, then this Court has grave doubt as to whether the
action of a party exercising its statutory right to rethink/renege can be
termed as mocking at the Court or encouraging dishonesty or indulging in
fraud/ misrepresentation as held in Avneesh Sood (supra) and Shikha
Bhatia (supra).

28. Moreover, as rightly pointed out by learned counsel for the
respondent, the judgment of the Division Bench of this Court in the case of
Dinesh Gulati (supra) has taken a diametrically different view than the one
taken by learned Single Judges of this Court in Avneesh Sood (supra) and
Shikha Bhatia (supra). The judgment in Dinesh Gulati (supra) is
reproduced hereinbelow:-
"1. The appellant is aggrieved by the order dated 04.04.2016
whereby he was issued show cause notice to answer why
contempt proceedings ought not to be proceeded with against
him for noncompliance of the order recording the joint
statement of the parties. The brief facts are that the appellant
had initiated proceedings for dissolution of marriage between
him and the respondent wife by HMA 545/ 2014. During the
pendency of those proceedings the parties stated before the
court that they had resolved their differences and they would
move for a mutual consent divorce under Section 13- B of the
Cont. Cas.(C) 772/2013 & Ors. Page 26 of 29
Hindu Marriage Act, 1956. Apparently, for one reason or the
other mutual consent divorce proceedings were not initiated. In
these circumstances, the appellant moved contempt proceedings
for initiating actions against the respondent wife. The contempt
petition was dismissed by the impugned order. At the same
time, the court initiated – of its own accord suo motu contempt
proceedings against the present appellant for non-compliance
of the order and the joint statement dated 22.07.2014.

2. The recourse to the contempt proceedings in the
circumstances of the present case as well as the orders passed
on 04.04.2016 and 22.07.2014 (order recording joint statement
of the parties) is baffling given that it completely neglects the
mutuality aspect as provided for under Section 13B. It is not
understandable how the court through its order initiated the
coercive process of contempt proceedings, foreclosed the
choice which the parties have by virtue of the mechanism under
Section 13B – to award mutual consent divorce in two stages.
To put it differently – through the impugned order, the parties’
right to step back at any stage stood negated. If the law permits
the parties to rethink and not proceed with mutual consent
divorce – a concept which is based upon mutuality, an
agreement to divorce cannot be enforced in a manner that is
sought to be done in the present case. It is settled law that even
if a compromise is embodied in an order, its essential
characteristics of being founded on a contract that casts upon
an enforceable contract, is not in any manner undermined. If
this essential reality is lost sight of, the parties may be faced
with dangerous consequences – unintended legal result i.e. a
residuary ground of divorce otherwise not thought of by
Parliament or made into a separate ground for dissolution of
marriage.

3. Having regard to the fact that the parties are unable to or do
not wish to proceed with the agreement dated 22.07.2014 for a
mutual consent divorce, the appropriate recourse in our
opinion would be to restore the original divorce petition HMA
545/2014 on the file of the case. The parties are directed to be
present before the concerned Family Judge on the date fixed.
Cont. Cas.(C) 772/2013 & Ors. Page 27 of 29
The court shall thereafter proceed with the main petition for
divorce referred by the appellant on its merits.

4. Appeal is allowed in the above terms. The pending
application also stands disposed of.‖
(emphasis supplied)

29. Keeping in view the aforesaid reasons, this Court has serious doubts
as to view taken by earlier Coordinate Benches in Avneesh Sood (supra)
and Shikha Bhatia (supra). Consequently, it deems it appropriate to refer
the matter to a Division Bench. This Court may mention that the decision
of this Court to refer the matter to a Division Bench is in conformity with
the decision of the Supreme Court in Sant Lal Gupta and Others Vs.
Modern Cooperative Group Housing Society Limited and Others, (2010)
13 SCC 336 wherein it has been held as under:-

―17. A coordinate Bench cannot comment upon the discretion
exercised or judgment rendered by another coordinate Bench of
the same court. The rule of precedent is binding for the reason
that there is a desire to secure uniformity and certainty in law.
Thus, in judicial administration precedents which enunciate the
rules of law form the foundation of the administration of justice
under our system. Therefore, it has always been insisted that the
decision of a coordinate Bench must be followed.
(Vide Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal
Patel [AIR 1968 SC 372], Sub-Committee of Judicial
Accountability v. Union of India[(1992) 4 SCC 97] and State of
Tripura v. Tripura Bar Assn. [(1998) 5 SCC 637 : 1998 SCC
(L&S) 1426] )

18. In Rajasthan Public Service Commission v. Harish Kumar
Purohit [(2003) 5 SCC 480 : 2003 SCC (L&S) 703] this Court
held that a Bench must follow the decision of a coordinate
Bench and take the same view as has been taken earlier. The
earlier decision of the coordinate Bench is binding upon any
Cont. Cas.(C) 772/2013 & Ors. Page 28 of 29
latter coordinate Bench deciding the same or similar issues. If
the latter Bench wants to take a different view than that taken
by the earlier Bench, the proper course is for it to refer the
matter to a larger Bench.‖
(emphasis supplied)

30. In the opinion of this Court, the following questions of law arise for
consideration by a division bench of this Court :-
A) Whether a party, which has under a settlement agreement decreed by
a Court undertaken to file a petition under Section 13B(1) or a motion
under Section 13B(2) of the Act, 1955 or both and has also undertaken to
appear before the said Court for obtaining divorce can be held liable for
contempt, if the said party fails to file or appear in the petition or motion or
both to obtain divorce in view of the option to reconsider/renege the
decision of taking divorce by mutual consent under Section 13B(2) of the
Act?

B) Whether by undertaking before a Court to file a second motion under
Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an
undertaking to a Court to that effect in a separate court proceeding, a party
waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes,
whether such right can be waived by a party under Section 13B(2) of the
Act, 1955?

C) Whether any guidelines are required to be followed by the Court
while recording the undertaking/agreement of the parties with respect to a
petition under Section 13B(1) or a motion under Section 13B(2) of the Act,
1955 or both for obtaining divorce?

D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia
Cont. Cas.(C) 772/2013 & Ors. Page 29 of 29
(supra) are good law in view of the doubts expressed by this Court in paras
19 to 28 and in view of the Division Bench judgment in Dinesh Gulati
(supra).

Accordingly, list the matters before Division Bench on 07th February,

2017 subject to orders of Hon’ble the Chief Justice.
MANMOHAN, J
JANUARY 09, 2017