Category Archives: mutual consent divorce

She can come back EVEN if you are DEAD !! A Decade After Man’s Death, Delhi HC Allows His Wife’s Appeal

A Decade After Man’s Death, Delhi HC Allows His Wife’s Appeal Against Divorce [Read Judgment] | Live Law

By: ashok kini

delhi hc

Ten years after the death of her husband, a lady’s appeal against divorce decree granted by the family court has been allowed by the Delhi High Court.

In 2007, the family court had dissolved their marriage observing that they had reached to a point of no return and their marriage had broken down irretrievably. The wife filed an appeal against this and in 2008, the husband expired. He was represented in the proceedings by his father.

In her appeal, the wife’s contention was that the family court did not take into account the factum that he had withdrawn her consent to the grant of the decree of mutual consent and that she, having refused to participate in the same, cannot now be compelled to accept a divorce through mutual consent in as much as the mutuality to the consent does not exist.

Perusing the records of this case, Justice Anu Malhotra observed that the element of mutual consent have not continued at the stage of proceedings under Section 13B(2) of the Hindu Marriage Act, 1955 when the decree of divorce was granted, no such decree of divorce under Section 13B(2) of the Hindu Marriage Act, 1955 as amended, as granted vide the impugned order, could have been granted.

The court said: “In the absence of the continued mutual consent a decree of divorce under Section 13 B(2) of the Hindu Marriage Act, 1955 as amended cannot be granted as laid down in Smruti Pahariya Vs. Sanjay Pahariya and from the absence of one of the parties before the Trial Court, the presumption of consent for divorce cannot be attributed to that party as consent needs to continue till the date of the decree of divorce under Section 13B (2) of the Hindu Marriage Act, 1955 as amended and the Court has the statutory obligation to hear the parties to ascertain their consent which was clearly not done in the instant case, the appellant not even being present on the date 06.10.2007 i.e. the date of the decree of divorce granted through mutual consent.”

Read judgement here : Courtesy Live law :

https://drive.google.com/file/d/1Qd4qxSrIZ5PrfC3V6NWfPlelxbgHbj71/view

 

 


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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Wife looses divorce u/s 13 HMA at Family court and quietly agrees for mutual consent at HC ! CHHATTISGARH HC

wife seems to have filed for divorce on grounds of cruelty but lost at the lower court. She appeals at HC but must have realized why she will NOT win and quietly comes for mutual consent !!

 

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 4-5-2018

Delivered on 19-6-2018

FAM No. 58 of 2017

(Arising out of the judgment and decree dated 29-11-2016 of the Judge, Family Court, Korba, in Civil Suit No. 18-A/2016)

Smt. Sunita Nankani W/o Shri Mahesh Nankani, R/o Near Sindhu Bhawan, Sani Road, Korba, Tahsil and District Korba, CG, at present R/o Flat No. 506, Muskan Plaza, Shatabdipuram, Jabalpur M.P. —- Appellant
Versus
Mahesh Nankani S/o Shri Kanhaiyya Lal Nankani, R/o House No. T/48, Hospital Line, Camp Madhav Nagar, Katni, Tahsil and District Katni, M.P. —- Respondent

For appellant : Shri Vipin Punjabi Advocate

For respondent : Shri Ratnesh Kumar Agrawal, Advocate

Hon’ble Shri Thottathil B. Radhakrishnan, Chief Justice

Hon’ble Shri Sharad Kumar Gupta, Judge

C.A.V. ORDER Per Sharad Kumar Gupta, Judge

1. In this appeal challenge is levied to the judgment and decree dated 29-11-2016 of the Judge, Family Court, Korba, in Civil Suit No. 18-A/2016 whereby and whereunder she dismissed the appellant’s-wife’s divorce petition filed under Section 13 of the Hindu Marriage Act, 1955 (in brevity ‘Act of 1955′) against the respondent-husband.

2. In brief, case of the appellant is that her marriage was solemnized with respondent on 24-2-1995 in accordance with Hindu religion and customary rites and rituals at Katni, Madhya Pradesh. In their wedlock two children have born namely Himanshu Nankani aged about 18 years and Kapil Nankani aged about 15 years who are living with her. After the marriage the respondent started harassing her.

3. The respondent remained exparte and did not file written statement.

4. After conclusion of the trial, the trial Court passed aforesaid judgment and decree. Being aggrieved, the appellant has preferred this appeal.

5. During pendency of this appeal, the case was referred to the High Court Mediation Centre where a settlement was arrived at between the parties and both the parties were agreed that they will file an application for divorce by mutual consent. In furtherance thereof, both the parties have filed an application for divorce by mutual consent on 27-4-2018.

6. It would be pertinent to mention the provisions of Section 13-B of the Act of 1955 which reads as under:- “13-B. 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.

7. In the matter of Amardeep Singh -v- Harveen Kaur [(2017) 8 SCC 746], in para 19 and 20 the Hon’ble Apex Court held that :- “19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13- B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/ Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned. 20. Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

8. From the above judicial precedent laid down in Amardeep Singh (supra), it is unequivocal that provisions of Section 13-B(2) of the Act of 1955 are directory in nature and Court may waive the six months’ statutory waiting period considering the circumstances as pointed out in above cited case law.

9. This Court has inquired both the parties. We are satisfied that both the parties have filed the application voluntarily, without any influence or pressure. They have been living separately for a period of one year or more. They have not been able to live together and they have mutually agreed that the marriage should be dissolved. All efforts for mediation/conciliation have failed in saving the marriage and there is no likelihood of success in that direction by any further efforts. Parties have genuinely settled their differences and have honestly and bonafidely decided to part. The waiting period will only prolong their agony. We see a strong case to waive the statutory period of six months under Section 13-B(2) of the Act of 1955. Thus, this Court waives the aforesaid waiting period of six months and orders that the aforesaid marriage solemnized between the appellant and the respondent is dissolved by the decree of divorce from today and the respondent-husband shall pay the allowance for maintenance at the rate of Rs. 10,000/- (Rs. Ten Thousand) per month to the minor child Kapil Nankani through his guardian – mother the appellant, till he attains majority from the date of filing of the application i.e. 27-4-2018.

10. The appeal is accordingly disposed of.

11.Parties shall bear their own costs.

12. A decree be drawn up accordingly.

 

Sd/-                                                                  Sd/-
(Thottathil B. Radhakrishnan)                  (Sharad Kumar Gupta)

Chief Justice                                                   Judge

 

 

pathak

75 lakhs ONLY in #PermanentAlimony for a marriage that was troubled from the VERY beginning !!

////Immediately after six months of the marriage differences have started between them and most of the time they remained separately. /////
However a good case if someone wishes to #WaiveSixMonths, #WaiveCoolingPeriod for #MutualConsent #divorce
#MPHC #MadhyaPradeshHighCourt
===================================

Madhya Pradesh High Court
Smt. Iti vs Sharad on 8 December, 2016
WP-8119-2016
(SMT. ITI Vs SHARAD)

08/12/2016 :-

Shri Ritesh Inani, learned counsel for the petitioner.

Heard on the question of admission : Admit.

Issue notice to the respondent.

Shri Padbhanabh Saxena accepts notice on behalf of the
respondent.

They are heard.

The present petition is preferred against the order dated
05/12/2016 passed by the learned Family Court, Indore in
HMA case No.1536/2016, whereby the learned Judge has
dismissed the joint application filed by the parties for
waiving off the cooling off period of six months provided
under Section 13-b (2) of the Hindu Marriage Act, 1995.
The Division Bench of this court by order dated 29.9.2016
passed in W.P. No.6541/2016, considered this question
and remanded the matter to the learned trial court to
decide a fresh in accordance with law. Order dated
29.9.2016 passed in W.P. No.6541/2016 reads as under :-
�Petitioner has preferred this petition with
joint affidavit of himself as well as of
respondent being aggrieved by the order
dated 15.9.2016 passed in HMA Case
No.1165/2016 by which IInd Additional
Principal Judge, Family Court, Indore has
dismissed their joint application for waiving
off cooling period of six months as provided
under section 13-B(2) of the Hindu Marriage
Act.

2. Facts of the case are as under :-

Marriage of petitioner and respondent was solemnized in the year 2002 under the Hindu customs and rites. Immediately after six months of the marriage differences have started between them and most of the time they remained separately. Out of their marriage one child Samyak was born in the year 2011 who is presently residing with respondent/wife. Due to increase of differences between them they finally started living separately since last 2-3 years. Since the efforts of reconciliation made by the relatives and members of the society have failed they decided to seek divorce by way of mutual consent and accordingly they moved an application under section 13-B of the Hindu Marriage Act before the Family Court, Indore on 6.5.2016. Before entertaining the said application they were directed to appear before the Mediator, however, the mediation has failed which is evident from the report dated 14.10.2016. Since the petitioner and respondent has made up mind to seek divorce, therefore, they moved an application before the Family Court for waiving off the cooling period of six months. Vide impugned order dated 15.09.2016 learned Family Judge has rejected the application on the ground that the Family Court has no jurisdiction to waive off the cooling period of six months, hence the present petition before this Court.

3. Shri Ajay Bagadia, learned counsel for the petitioner submits that when parties have decided to take divorce by way of mutual consent then in view of the law laid down in the case of Nikhil Kumar v. Rupali Kumar reported in AIR 2016 SC 2163, in the case of Virendra Singh Rajak vs. Seema Rajak reported in 2015 (3) MPLJ 188 and in the case of Deepak (Dr.) v. Smt.Tanuja reported in 2003 (2) JLJ 121 the cooling period is liable to be waived off and the learned Family Court be directed to pass the divorce decree.

4. The aforesaid prayer is not opposed by the respondent who is appearing in person as they jointly filed this present petition. That both petitioner as well as respondent appeared before this court and jointly submitted that they are not able to live together and they mutually agreed that the marriage should be dissolved forthwith and the consent has not been obtained by force or fraud or undue influence. As per the terms and conditions of the divorce petitioner/husband has agreed to give Rs.60 lacs as permanent alimony and in addition to this Rs.15 lacs would be paid in the name of his son Samyak. Petitioner as well as respondent are well educated and belong to the respected families and there is no other dispute between them.

5. The approach of Apex Court in the case of Yogendra Yadav and others vs.State of Jharkhand and another reported in (2014) 9 SCC 653 is that in the cases of compromise petition filed by the parties, the criminal proceedings should be quashed to secure the ends of justice to avoid wastage of time and energy and there is no use of keeping the criminal trial pending even in non- compoundable cases.

6. Now we have to consider when Supreme Court has waived off the period of six months in exercise of powers under Article 142 of the Constitution of India whether High Court can also waive off the cooling period of six months. In pending first appeal this Court has waived off cooling period and granted the decree of divorce by allowing joint application filed u/s 13-B of the Hindu Marriage Act. The question is whether in writ petition can we pass decree of divorce directly or we may direct the Family Court to pass the decree of divorce by waiving off cooling period of six months. To opt second option, we have to consider whether period of six months is mandatory or directory in nature before passing decree of divorce by mutual consent.

7. The Andhra Pradesh High Court in the case of K.Omprakash v. K.Nalini reported in AIR 1986 AP 167 held as under:

10. For all the above reasons, we are of the
opinion that S. 13-B(2)of the Hindu Marriage Act
should be read as directory only. S. 13-B(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 interests of
justice of the society and the individuals
marriage tie should be put asunder immediately,
S. 13-B(2) does not impose any fetter on the
power 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. 13-
B(2)does not apply to an appellate Court. The
great Telugu 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
straightway. Accordingly we pass a decree of
divorce declaring the marriage between the
appellant and the respondent as dissolved with
immediate effect.

8. The Kerala High Court in the case of Sreelatha v. Deepthy Kumar reported in AIR 1998 Kerala 97 held as under :-

5. We are of the view that this Court can act on
the Memo of Compromise filed before us as
indicative of a sane and sober thinking after
exploring all possible avenues, if any, for
bringing about a union to dissolve the marriage,
having failed. We have also verified from the
appellant- wife as also the respondent-husband in
the presence of their respective counsel in open
Court, who also have represented before us that
the Memorandum of Compromise has been filed after
great deliberations and consideration of the pros
and consinvolved in the matter. The terms and
conditions, subject to which the parties have
agreed to have the dissolution of their marriage
make it clear that each one of them has no
further subsisting claims over the other.
9. The Karnataka High Court in the case of Smt. Roopa Reddy v. Prabhakar Reddy reported in AIR 1994 Karnataka 12 held as under:

13. The next question is whether the requirement
under S. 13-B 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 liberalized 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. 13-B(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 directory 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. 13- B(2)is read as
mandatory, the very purpose of liberalizing the
policy of decree of divorce by mutual consent
will be frustrated. Thus, S. 13- B(2), though it
is mandatory in form is directory 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 misery and emotion.
Whether one accepts it or not liberalization in
the 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 sex 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
persona] 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.

19. In the background of the circumstances
narrated in the case,the request made by both
parties for divorce by mutual consent is the only
just and proper way to allow them to spend their
remaining period of life happily with contentment
instead of compelling them to lead a miserable
and emotional life without any constructive
purpose.

10. The Madras High Court in the case of R. Venkatasubramanian vs. Ramya Ganesan in Civil Revision Petition (PD) No.2443 of 2016 held as under:

3. L e a r n e d counsel submits that
petitioner/husband filed H.M.O.P. No.314 of 2012
on the file of learned Subordinate Judge,
Poonamallee, seeking divorce. Both
petitioner/husband and respondent/wife have been
living separately over a period of four years and
hence, they have entered into a Memorandum of
Understanding and filed H.M.O.P.No.320 of 2016
seeking divorce by mutual consent. They have also
filed I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320
of 2016 to waive the minimum waiting period of
six months after presentation of petition for
divorce by mutual consent. Learned counsel
submits that as per Section 13B(1)of the Hindu
Marriage Act, 1955, a petition for divorce by
mutual consent could be filed after completion of
one year of marriage. In the instant case, both
petitioner and respondent have not been living
together for the past four years and hence, they
have filed I.A.S.R. No.5814 of 2016 in H.M.O.P.
No.320 of 2016 seeking grant of waiver, which was
returned by the Court below. Hence, this revision
has been filed seeking a direction to learned
Subordinate Judge, Poonamallee, to take the case
in I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320 of
2016 on file.

9. … Hence, the object of the cooling period
of six months is to-retrieve the difference of
opinion between the parties. But here, there is
no chance for reunion. Because already both the
parties are waiting for a long period and only in
the Mediation, the matter was settled. In such
circumstances, I am of the view, to render
complete justice to the parties, six months’
cooling period mentioned under Section 13-B(2)of
the Hindu Marriage Act is not a bar to grant
mutual consent immediately.

10. Further more, on considering the Agreement
entered by the parties before the Mediation and
on that basis only, Divorce Petition on mutual
consent has been filed, this Court is of the
opinion that six months’ cooling period under
Section 13-B(2)of the Hindu Marriage Act is
hereby dispensed with and the Principal Family
Court, Chennai, is directed to record the
evidence of both the parties and dispose of the
Petition filed under Section 13-B of the Hindu
Marriage Act in accordance with law.

11. That the Apex Court in the recent case of Nikhil Kumar vs. Rupali Kumar (supra) has considered the educational background of the appellant as well as respondent and considering the facts and circumstances of the case the cooling period was reduced and granted the decree of divorce under section 13-B of the Hindu Marriage Act. In the case of Virendra Singh Rajak vs. Seema Rajak (supra) this Court after considering various judgments of the Supreme Court has granted the decree of divorce by reducing the cooling period. In the case of Deepak v. Smt. Tanuja (supra) this Court has held that this Court as well as the trial Court at any stage of proceeding can grant decree by mutual consent if the conditions laid down in section 13-B and Section 23 of the Act are fulfilled by waiving off the period of six months. In the present case petitioner and respondent filed an application for mutual divorce on 6.9.2016. In the aforesaid cases the Supreme Court has granted the decree of divorce in exercise of powers under Article 142 of the Constitution of India. The High Court has also granted the decree of divorce under section 13-B in number of pending regular appeals under the provisions of the Hindu Marriage Act but here the petitioner has filed the writ petition challenging inter alia the order of the Family Court, therefore, in which we cannot directly grant the decree of divorce to the petitioner but instead of granting the decree of divorce we direct the petitioner as well as respondent to appear before the Family Court on 14.10.2016 which is already fixed for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said section.

12. With the aforesaid direction, writ petition is disposed off.

No order as to costs.� In view of the aforesaid, we direct the petitioner as well as respondent to appear before the Family Court on 09/01/2017, for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said Section. With the aforesaid direction, writ petition is disposed of. No order as to costs.

C.C. as per rules.

Aiyer*

(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE

After 12.5 lakhs & mutual agreed, SC transfers case 2 wife’s city. Orders 5 lakhs upfront pmt (b4 divorce)

We see that the courts are filled with compassion when it comes to family matters, especially matters concerning women ! Here is a case where a divorcee woman marries a bachelor. Soon differences crop and matters reach court. At SC, thru mediation, husband agrees to pay Rs 12.5 Lakhs to wife and they agree to mutual consent divorce. But but ….. the Hon SC comes to know that the wife is suffering from breast cancer. So the Hon SC is worried that the divorce is obtained due to (wife’s situation ) compulsion and so the Hon SC asks the husband to pay Rs 5 Lakhs EVEN WITHOUT divorce and tarnsfers cases to wife’s city – Hyderabad, orders the family court at Hyderabad to take up the matter afresh and adjudicate !!

================================

Excerpts :

=> “…The transfer petition was listed before this Court on 28.08.2015, when, at the request of the counsel for the parties, the matter was referred to Supreme Court Mediation Centre for amicable settlement. …” and “… the respondent-husband agreed to pay Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only) towards full and final settlement as alimony, maintenance for past and future or any other claim of the petitioner. The respondent-husband had agreed to pay the said amount of Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only), by way of Bank draft in the name of the Registrar, Supreme Court, ...”
=> However the court is infromed of the wife’s condition ..i.e. “… the document i.e. the medical certificate, reveals that a lump in the breast was found which highly suggests malignancy. The doctors recommended for an immediate surgery and chemotherapy ranging from 6 to 8 cycles of adjuvant. It is mentioned that approximate costs per cycle will cost about Rs. 50,000/- …”
=> Since Hindu marriage is sacred “…Hindu marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bone and flesh to flesh….”
=> and the court orders as follows “..(i) The transfer petition for the transfer of matrimonial suit being petition No.A-642 of 2015 pending before the Family Court at Bombay, Maharashtra to Family Court at Hyderabad is allowed. …. (ii) The respondent-husband shall pay a sum of Rs.Five Lacs (Rs.5,00,000/-) out of Rs.12,50,000/- to the petitioner-wife immediately within a week for her treatment and meeting other medical expenses. (iii) After the petitioner is fully cured from the disease or within six months whichever is earlier, the Family Court at Hyderabad, where the divorce petition is ordered to be transferred, shall take up the case along with a fresh application that may be filed by the parties …….. the Family Court at Hyderabad shall dispose of those petitions in accordance with law after recording its satisfaction and giving opportunity of hearing to both the parties….”

================================

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO. 702 OF 2015

Vennangot Anuradha Samir …..Petitioner

versus

Vennangot Mohandas Samir …Respondent

O R D E R

M.Y. EQBAL, J.

Heard learned counsel appearing for the parties and perused the records along with the affidavits and petitions.

  1. Admittedly, the marriage of the petitioner with the respondent was solemnized in April, 2010 according to Hindu Vedic Rites. At the time of marriage, the respondent-husband was a bachelor and the petitioner-wife was a divorcee. It was a love marriage after both of them came in contact with each other in October, 2006. In 2013, some misunderstanding developed between the petitioner and the respondent as a result of which the petitioner left the house.
  2. In 2015, the respondent-husband filed a suit for dissolution of marriage by a decree of divorce under Section 13(1)(1a) of the Hindu Marriage Act on the ground that the petitioner-wife after solemnization of the marriage had committed various acts of cruelty. Admittedly, the petitioner is living in Hyderabad with her parents. The petitioner, therefore, moved an application before this Court for transfer of divorce suit pending before the Family Court Bombay to the Family Court at Hyderabad.

  3. The transfer petition was listed before this Court on 28.08.2015, when, at the request of the counsel for the parties, the matter was referred to Supreme Court Mediation Centre for amicable settlement. Before the Mediation Centre, a Settlement Agreement was filed on 26.10.2015. In terms of the said Settlement Agreement, the respondent-husband agreed to pay Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only) towards full and final settlement as alimony, maintenance for past and future or any other claim of the petitioner. The respondent-husband had agreed to pay the said amount of Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only), by way of Bank draft in the name of the Registrar, Supreme Court, which shall be paid to the petitioner-wife at the time of passing of decree of divorce by mutual consent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  4. On 6 th November, 2015, the case was again listed along with the office report and Settlement Agreement. The matter was adjourned to enable the parties to file appropriate application.

  5. Consequently, an application was filed purported to be under Section 13B of the Hindu Marriage Act with a prayer to treat the divorce petition pending before the Family Court, Bombay as an application under Section 13B of the Act and treat the present application as second motion and grant divorce by way of mutual consent.

  6. In the said application it was mentioned that petitioner-wife is suffering life threatening disease and urgently requires funds for her medical treatment and also that she has to depend on herself for proper care.

  7. On 17.11.2015, the case was adjourned at the request of the petitioner-wife, to enable her to file additional documents in support of her case that she is suffering with life threatening disease. In compliance thereof additional documents have been brought on record.

  8. Perusal of the document i.e. the medical certificate, reveals that a lump in the breast was found which highly suggests malignancy. The doctors recommended for an immediate surgery and chemotherapy ranging from 6 to 8 cycles of adjuvant. It is mentioned that approximate costs per cycle will cost about Rs. 50,000/-.

  9. From the above mentioned admitted facts, it is evident that the petitioner needs sufficient amount of money for the treatment of breast cancer. Hence, it cannot be ruled out that in order to save her life by getting money, she agreed for a settlement of dissolution of marriage. On these facts, a question that came in our mind is as to whether the Court would be justified in granting a decree for divorce on the basis of settlement when the wife is suffering with breast cancer and is in need of money for her treatment and can that be the consideration for dissolution of marriage.

  10. Hindu marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bone and flesh to flesh. To a Hindu wife her husband is her God and her life becomes one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband’s life and activities. Colebrooke in his book “Digest of Hindu Law Volume II” described the status of the wife thus:- “ A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts:- whether she ascend the pile after him or survive for the benefit of her husband, she is a faithful wife.”

  11. Further Colebrooke in his book Digest of Hindu Law Volume-II quoted the Mahabharata at page 121 thus:- “ Where females are honoured, there the deities are pleased; but where they are unhonoured there all religious acts become fruitless.” This clearly illustrates the high position which is bestowed on Hindu women by the Shastric law.

  12. From the study of Hindu Law and different religious books, it cannot be disputed that after marriage law enjoins the corresponding duty on the husband to look after her comforts and not only to provide her food and clothes but to protect her from all calamities and to take care of her health and safety.

  13. In the peculiar facts of the present case if we consider the instant settlement, which is nothing but a contract to dissolve the marriage, the Court has to satisfy itself that the contract is legal and valid in the eye of law. From perusal of the facts of the case and the development which has taken place in the present case, it seems that the petitioner-wife agreed for divorce by mutual consent on the condition that the respondent-husband will pay her Rs.12,50,000/- as full and final settlement. The petitioner-wife is suffering from such a disease which has compelled her to agree for the mutual consent divorce. The fact that petitioner-wife is ready for the mutual consent divorce after knowing about her medical condition raises a suspicion in our mind as to whether the consent obtained from the petitioner-wife is free as required by law for granting the decree of divorce by mutual consent.

  14. Section 13-B of the Hindu Marriage Act makes a provision of divorce by mutual consent, which 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 solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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 solemnised 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.”

  15. Section 23 casts a duty upon a Court to record its satisfaction before passing a decree in a suit or proceeding. Section 23(1)(bb) is also worth to be quoted hereinbelow:- “ 23.Decree in proceedings : (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that — (a)…………………………………………… (b)…………………………………………… (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence.

  16. This Court elaborately discussed the aforesaid provisions in the case of Sureshta Devi vs. Om Prakash, (1991) 2 SCC 25, and observed thus:- “…… 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.”

  17. If we consider the provisions of Indian Contract Act, it provides that consent is said to be free when it is not caused by “undue influence” as defined in Section 16 of the Act. The contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

  18. One more doctrine is to be taken into consideration i.e. “Pre-existing duty doctrine”. It is a principle under the Contract Act that states that if a party to a contract is under a pre-existing duty to perform, then no consideration is given for any modification of the contract and the modification is therefore voidable. In the 13 th edition of the Pollock & Mulla Indian contract and Specific relief Act in Vol.1, it is mentioned at page 101 about the Pre-existing obligation under law which provides that:-“The performance of what one is already bound to do, either by general law or by a specific obligation to the other party, is not a good consideration for a promise; because such performance is no legal burden to the promise, but rather relives him of a duty. Neither is the promise of such performance a consideration, since it adds nothing to the obligation already existing.”

  19. We can apply this principle in the present case. As discussed above, it is a duty of the respondent-husband to take care of the health and safety of the petitioner-wife. In the instant case also it is a primary duty of the husband only to provide facilities for the treatment of the petitioner. This is a pre-existing duty of the husband, provided the husband has sufficient means and he is diligently doing his part in taking care of her. In the present case, by the settlement agreement the respondent-husband is promising to do something which he is already duty bound, is not a valid consideration for the settlement. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  20. In the peculiar facts and circumstances of the case, we, therefore, pass the following order:-

(i) The transfer petition for the transfer of matrimonial suit being petition No.A-642 of 2015 pending before the Family Court at Bombay, Maharashtra to Family Court at Hyderabad is allowed. The petition is ordered to be transferred accordingly. The transferor court shall forthwith transmit the record of the aforesaid case to the transferee court.

(ii) The respondent-husband shall pay a sum of Rs.Five Lacs (Rs.5,00,000/-) out of Rs.12,50,000/- to the petitioner-wife immediately within a week for her treatment and meeting other medical expenses.

(iii) After the petitioner is fully cured from the disease or within six months whichever is earlier, the Family Court at Hyderabad, where the divorce petition is ordered to be transferred, shall take up the case along with a fresh application that may be filed by the parties under Section 13B for divorce by mutual consent. After compliance of all the formalities, the Family Court at Hyderabad shall dispose of those petitions in accordance with law after recording its satisfaction and giving opportunity of hearing to both the parties.

…………………… J. (M.Y. Eqbal)

…………………….J. (C. Nagappan)

New Delhi

December 02, 2015

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Having taken 1.25 crores I will NOT defame him thru social networking sites & electronic medium !! Mutual consent , P & H HC

  • 1 crore 25 lakhs for divorce.
  • Daughter to remain with father, so woman free to find next guy !
  • The fate of matrimony in India

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

FAO No.1509 of 2015 (O&M)

Date of Decision: 18.02.2016

Amar Somany                                   …..Petitioner No.1
And
Prerna Sharma                                   ….Petitioner No.2

CORAM:           HON’BLE MR. JUSTICE RAJIVE BHALLA
        HON’BLE MRS. JUSTICE LISA GILL

Present:    Ms. Ritu Pathak, Advocate with Mr. Gaurav Arora, Advocate for
Mr. Ashish Aggarwal, Sr. Advocate  for petitioner No.1  with petitioner No.1 in person.
Ms. S.P.S.Aulakh, Advocate for petitioner No.2 with petitioner No.2 in person.

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RAJIVE BHALLA, J (ORAL)

Amar Somany, filed a petition for grant of a decree of divorce, which was dismissed by the District Judge, Family Court, Gurgaon, on 31.01.2015. The appeal filed was pending when parties entered into a settlement and decided to dissolve their marriage by a written compromise (Annexure A-1) dated 07.08.2015, on the following terms and conditions:-

“(i) That parties have agreed for dissolution of marriage by mutual consent.
(ii) The parties have agreed to withdraw the entire litigation if any pending in any court or before any other authority against each other.
(iii) That the First Party shall pay Rs.1,25,00,000/- (Rs. One Crore Twenty Five Lacs only) to the Second Party in the Court against full and final settlement of claims.
(iv) That as submitted above, the First Party shall pay Rs.1,25,00,000/- (Rs. One Crore Twenty Five  Lacs only) to the Second Party in the Court towards full and final settlement of all claims regarding any Jewellery lying in the safe deposit box at SBBJ (Kath Mandi, Rewari), Clothes, Istridhan, gift articles and Maintenance amount i.e. of present, past and future alimony and towards any of her other claims in this respect whatsoever against First Party. Out o the total amount of Rs.1,25,00,000/- (Rs. One Crore Twenty Five Lacs only) the First Party shall pay Rs.12,50,000/- (Rupees Twelve Lacs Fifty Thousand) through Demand Draft No.051913, dated 6.8.2015, HDFC Bank, to the Second Party after signing the Compromise Deed and other relevant documents to be filed in the Hon’ble High Court and the balance amount i.e. Rs.1,12,50,000/- (Rupees One Crore Twelve Lacs Fifty Thousand) shall be paid to the Second Party by way of Demand Draft at the time of final decision before this Hon’ble Court.
(v) That the custody of the minor daughter namely Sara aged about 6 years shall remain with the First Party. The Second Party shall only be entitled to meet the child four times in a one year, as per the convenience of the child and as per mutual adjustments of both the parties. It has been decided that the Second Party will met the child for 3-4 hours on the day of the visit (i.e. for each visit). Furthermore, the Second Party shall not claim the custody of the child in future.
(vi) That the Second Party shall not claim any other maintenance and shall not claim any right, title or interest in any manner in the moveable or immoveable property of the First Party.
(vii) That the Second Party shall have no future interference in the education, social welfare and upbringing of the child and furthermore no direct or indirect contact shall be maintained by the Second Party with the child either by herself or through anyone else/relatives, except for the purpose of meeting the child as per Clause (v) above.
(viii) That both the parties shall be bound to withdraw all the other criminal and civil cases pending against each other and their respective family members. Furthermore, they shall not initiate any litigation against each other and their family members in future and shall not defame through any means of communication and through social networking sites and electronic medium.”

The parties thereafter filed CM No.16302-CII of 2015, for altering the original petition filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) to a petition under Section 13-B of the Act. The application was allowed and the original petition was altered into a petition under Section 13-B of the Act on 17.08.2015.

The separate statements of parties in first motion were also recorded, which read as follows:-

“Statement of Mr.Amar Somany, son of Ashok Somany, resident of Flat No.1402, Tower No.15, Orchid Petals, Sohna Road, Sector-49, Gurgaon, on SA. My affidavit dated 07.08.2015 may be read as my statement in first motion.

Statement of Prerna Sharma, daughter of Prem Kishore, wife of Amar Somany, R/o House No.1285, Sector-3, New Housing Board Colony, Rewari (1st Address), resident of H.No.R-69, Gali No.4, Phase-II, Model Town, New Delhi (IInd Address), on SA. My affidavit dated 07.08.2015 may be read as my statement in first motion.”

A perusal of their respective affidavits reveal that the parties have agreed to dissolve their marriage on account of irreconcilable differences, settled permanent alimony, maintenance, past, present and future at Rs.1,25,00,000/-, to be paid in terms of the settlement and decided to pray for   dissolution of their marriage by mutual consent.

The petition has come up for consideration after expiry of six months. Counsel for the parties and the parties, who are present, pray that there is no change in their view as they are still of the opinion that it is not possible for them to reside together as husband and wife and, therefore, statements of parties may be recorded in second motion and their marriage may be dissolved.

The parties were directed to record statements in second motion.

Statement of Amar Somany, petitioner No.1 recorded in second motion reads as under:-

“I was married to Prerna Sharma on 03.10.2008 but on account of irreconcilable differences, I filed a petition for grant of a decree of divorce. The petition was, however, dismissed by the District Judge, Family Court, Gurgaon, on 31.01.2015. I filed the present appeal and during pendency of the appeal, we arrived at a settlement and executed a compromise deed. I acknowledge my signatures on compromise deed dated 07.08.2015. I have complied with all terms and conditions of the settlement. The petition under Section 13-B of the Hindu Marriage Act, 1955, has been filed without collusion, coercion, mis-representation or fraud, pray that our marriage be dissolved by grant of a decree of divorce by mutual consent. I also handed over a demand draft, of the remaining amount i.e. Rs.1 crore to Ms.Prerna Sharma in Court today, in full and final settlement of all claims of maintenance, past, present or future or of permanent alimony. Our minor child Sara, as agreed between us, shall remain in my custody and guardianship and I shall have no objection to visitation rights as recorded in the settlement. I shall withdraw all cases/ applications/complaints whether made before a Court, quasi-judicial authority or any other department filed by me or my family members   against Prerna Sharma or her family members. I pray that our marriage be dissolved.”

Statement of Prerna Sharma, petitioner No.2 recorded in second motion reads as follows:-

“I was married to Amar Somany on 03.10.2008. My husband filed a petition for grant of a decree of divorce, which was dismissed, on 31.01.2015. He filed an appeal and during pendency of the appeal, we arrived at a settlement which was reduced into a compromise deed dated 07.08.2015. I acknowledge my signatures on the compromise deed. I have received an amount of Rs.1.25 crores in total (Rs.1 crore having been received today), in full and final settlement of all claims of maintenance, past, present or future of permanent alimony. I have also agreed that the custody and guardianship of our minor child Sara shall remain with Amar Somany, as recorded in settlement. I shall, however, be entitled to visitation rights as agreed. I shall withdraw all cases/applications/ complaints whether made before a Court, quasi-judicial authority or any other department filed by me or my family members against Amar Somani or his family members. I pray that our marriage be dissolved.”

A demand draft bearing No.001280 amounting to Rs.1,00,00,000/- (Rs.One Crore only) has been handed over to Prerna Sharma, petitioner No.2.

Counsel for the parties pray that as parties have resolved their dispute and agreed to part ways by mutual consent, the petition may be allowed and their marriage may be dissolved.

We have heard counsel for the parties, perused averments in the petition, the affidavits filed in support thereof and statements recorded at first and second motion and the settlement.

The parties were personally asked whether there is any possibility of their residing together but both parties emphatically ruled out any possibility of residing together.

The parties stated that they have taken a conscious decision that as it is not possible for them to live together on account of irreconcilable differences, the best course for them is to part ways. We are satisfied that the parties have taken a conscious decision to dissolve their marriage as it is not possible for them to live together as husband and wife.

In the absence of any malafide, coercion, misrepresentation or fraud, the petition is allowed and marriage between the parties is dissolved by grant of a decree of divorce by mutual consent. The parties shall, however, remain bound by the terms and conditions of the settlement and perform their respective obligations as set out in the settlement. In case of any difficulty in the performance of any part of the settlement, the parties would be at liberty to approach this Court for further directions. Prerna Sharma has received a bank draft bearing No.001280 amounting to Rs.1,00,00,000/- (Rs. One Crore only).

A decree sheet be drawn up accordingly.

[ RAJIVE BHALLA ]
JUDGE

[ LISA GILL ]
JUDGE

18.02.2016