Tag Archives: mutual consent divorce

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 !!

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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….”

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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

=============================disclaimer==================================
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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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

Wife tries to wriggle out mutual consent AFTER accepting money !! Court sees game & dismisses case

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO No. M-221 of 2015 (O&M)

DATE OF DECISION :- July 22, 2015

Rashmi Arora …Appellant.

Versus

Munish Kumar …Respondent

CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL

HON’BLE MRS. JUSTICE RAJ RAHUL GARG

Present:- Mr. Varun Garg, Advocate for the appellant.

M.JEYAPAUL, J.

C.M. No.10713-CII of 2015

There is a delay of 150 days in re-filing the appeal. For the reasons set out in the application, the application is allowed.

 

  1. The appeal has been preferred by appellant Rashmi Arora, aggrieved by the dismissal of the petition filed by her under Section 25 of the Hindu Marriage Act, 1955 claiming permanent alimony not only for herself but also for her male child.
  2. There is no dispute to the fact that the appellant and the respondent jointly moved a petition under Section 13B of the Hindu Marriage Act, 1955 before the competent Court and obtained a decree of divorce dissolving the marriage by mutual consent.
  3. Appellant Rashmi Arora had received a sum of `7,08,500/- along with a gold chain towards past, present and future maintenance of herself and her minor son before ever she consented for passing a decree of divorce by mutual consent by the trial Court.
  4. The appellant filed the petition under Section 25 of the Hindu Marriage Act, 1955 before the District Judge, Patiala praying for permanent alimony from her ex-husband Munish Arora. Her contention in the said petition was that she was under mental depression and, therefore, she was unable to think of her future. She was, in fact, persuaded by the respectables of the village to get divorce from her husband. She has further alleged that she was in mental trauma and was not in a fit state of mind to foresee the difficulty which would arise in future.
  5. It is the submission of learned counsel for the appellant that some provision will have to be made at least for the male child born out of the wedlock. As the appellant was under depression, she could not take proper decision as regards her entitlement of permanent alimony when the petition under Section 13 of the Hindu Marriage Act, 1955 was taken up for consideration by the competent Court.
  6. It is not as if the trial Court which dealt with the petition under Section 13B of the Hindu Marriage Act, 1955 passed a decree for divorce by mutual consent on the very day the petition was filed. There was 1st motion as well as 2nd motion before ever the petition jointly filed by both the parties under the aforesaid provision of law was allowed. Consistently, the appellant had stated that she had received a sum of `7,08,500/- along with a gold chain for her permanent alimony as well as for the maintenance of her minor son. There is nothing on record to show that she was depressed or mentally upset when the joint petition was moved before the trial Court for passing a decree of divorce by mutual consent.
  7. In our considered view, it is totally unjustifiable to re-open the agreement entered into between the parties which ultimately culminated in passing a decree of divorce by mutual consent, settling for ever the permanent alimony to be paid to the appellant and the maintenance to be paid to the minor son by the respondent.
  8. In view of the above, we find that the trial Court has rightly dismissed the claim for permanent alimony set up by the appellant under Section 25 of the Hindu Marriage Act, 1955. Therefore, the appeal is dismissed.

 

(M. JEYAPAUL) JUDGE

(RAJ RAHUL GARG) JUDGE

July 22, 2015

p.singh

 

IF 1ST notice NOT served, 2nd service b ordered, NOT substituted service (NOT paper advert). Supreme court

If the service is not proper, the Court should have directed another service in the normal manner and should not have accepted the plea of the appellant-wife for effecting substituted service. A Court’s proceeding must have a sanctity and fairness. It cannot be conducted for the convenience of one party alone. Supreme court

wife who gets exparte decree on the grounds that husband has avoided notice (and gets paper advert published etc) looses exparte decree. Both Bombay HC and Supreme court set aside the exparte decree and send couple back to family court !

Key excerpts
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Direction for substituted service under Order 5 Rule 20 can be passed only when Court is satisfied “that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way”.

xxx

If the service is not proper, the Court should have directed another service in the normal manner and should not have accepted the plea of the appellant-wife for effecting substituted service.

xxx

14. Apart from the aforesaid irregularity, the Court, after ordering substituted service and perusing service return on 4.12.2007, fixed the matter for 10.12.2007. Then, on the application of the wife on 5.12.2007, pre-poned the proceeding to 5.12.2007 and on that very day granted the decree of divorce even though the matter was not on the list.

15. This Court strongly disapproves of the aforesaid manner in which the proceeding was conducted in this case. A Court’s proceeding must have a sanctity and fairness. It cannot be conducted for the convenience of one party alone. In any event, when the Court fixed the matter for 10.12.2007, it could not pre-pone the matter on an ex-parte prayer made by the appellant-wife on 5.12.2007 and grant the decree of divorce on that day itself by treating the matter on the board in the absence of the husband. This, in our opinion, is a flagrant abuse of the judicial process and on this ground alone, the decree dated 5.12.2007 has to be set aside.

16. On this aspect, this Court endorses the dissatisfaction expressed by the Bombay High Court in paragraph 34 of its judgment under appeal about the manner in which the date of final hearing was pre-poned and an ex-parte decree was passed.

xxx

52. For the reasons aforesaid, we affirm the view taken by the learned Judges of the Bombay High Court in the order under appeal.

53. The appeal is disposed of as follows:-

(i) On receipt of the copy of this judgment, the Family Court is directed to issue notice to both the parties to appear in the Court on a particular day for taking further steps in the case.

(ii) On that day, the parties are at liberty to engage their own counsel and they may be personally present before the Court and inform the Court as to whether they have consent to the passing of the decree under Section 13B of the Act. If both the parties give their consent for passing of the decree under Section 13B, the Court may pass appropriate orders.

(iii) If any of the parties makes a representation that he/she does not have consent to the passing of the decree, the Court may dispose of the proceedings in the light of the observations made by us.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Supreme Court of India

Smruti Pahariya vs Sanjay Pahariya on 11 May, 2009

Author: ……………….C.J.I.

Bench: K.G. Balakrishnan, P. Sathasivam, Asok Kumar Ganguly

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3465 OF 2009

(@ SPECIAL LEAVE PETITION (CIVIL) NO. 17402 OF 2008)

Smruti Pahariya …..Appellant(s)

– Versus –

Sanjay Pahariya ….Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. The wife, who is the appellant before this Court, filed this appeal seeking to impugn the judgment and order dated 5.6.2008 passed by the High Court of judicature at Bombay, which in a detailed judgment, was pleased to set aside the judgment and decree dated 5.12.2007 passed by the Family Court, Mumbai, in which the Family Court, dissolved the marriage between the appellant and the respondent by a decree of divorce on mutual consent under Section 13B of the Hindu Marriage Act, 1955 (hereinafter “the said Act”).

3. Admittedly, the parties are Hindu and governed by the provisions of the said Act and they were married on 5.3.1993 at Mumbai following the Hindu Vedic rites. Marriage was also registered. After marriage, the parties resided together in Flat No. 601, 2nd Floor, Dinath Court, Sir Pochkhanwala Road, Worli, Mumbai. Two sons were born to them, one on 1.2.1995 and the other one on 3.4.1997. A few years after that, serious differences and incompatibility surfaced between them and all attempts of settlement failed. The parties stopped living together from January 2005 and decided to file a petition seeking divorce by mutual consent under Section 13B of the said Act. A joint petition to that effect was filed before the Family Court at Bandra, Mumbai and the same was registered on 19.5.2007.

It was averred therein that incompatibility with each other made it difficult for them to co-exist and they stopped cohabiting as husband and wife from January 2005 (para 6). In paragraph 13, it was stated that there was no collusion between the parties in filing the petition for divorce by mutual consent and in paragraph 17 it was pointed out that there is no force or coercion between the parties in filing the petition. Along with the said petition, certain consent terms were also filed but with those terms we are not concerned in this proceeding.

4. Under the provisions of Section 13B (2) of the said Act, a minimum period of six month has to elapse before such petition can be taken up for hearing. In the instant case, the said period expired on or about 19.11.2007. In between, two dates were given, namely, 14.6.2007 and 23.8.2007 when the parties were given a chance for counselling but on both the days parties were absent and no counselling took place.

5. On 19.11.2007, after the mandatory period of six months, the matter came up before the Family Court. It appears from the affidavit filed by the wife in this proceeding before the Bombay High Court that on 3.11.2007, advocate of the parties informed the husband that the matter will be listed on 19.11.2007 and a draft affidavit of deposition was sent to him through E-mail. It is not in dispute that both the parties had the same advocate. It also appears from the affidavit of the wife that on 18.11.2007 the advocate received a text SMS in his mobile from the respondent-husband that he is unable to attend the court on 19.11.2007. Therefore, on 19.11.2007, when the matter appeared for the first time before the Court, the husband was absent and the Family Court asked the advocate to inform the husband of the next date of hearing of the matter, which was fixed on 1.12.2007.

6. On 19.11.2007 itself, an application was made by the wife to summon the husband directing him to be present in the Family court on the next date. Accordingly, summons were sent by the Court on 23.11.2007 by courier and the courier returned with the remark “not accepting”. In this connection, the order which was passed by the Family Court, on 1.12.2007, on perusal of the service report is of some importance. The following order was passed on the service return: “Perused the first summons and subsequent orders thereto. I have seen service affidavit also, states that servant was present. Hence I am not able to accept it as a proper one. The courier endorsement is also vague. Considering the contents in affidavit, I allow petitioner No.1 to serve the notice by pasting on the address given in cause title to petitioner No.2. EPSB allowed. It is made returnable on 4.12.2007.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. The petition was thus made returnable on 4.12.2007. It appears that the bailiff pasted the summons on 3.12.2007 outside the door of the husband’s residence and the matter came up before the Family Court on 4.12.2007 and on that day the husband was absent. The Family Court adjourned the matter to 10.12.2007. But on 5.12.2007, the wife, filed a petition before the Family Court with a prayer that the hearing of the matter may be pre-poned and be taken up on the very same day i.e. 5.12.2007. On the aforesaid prayer of the wife, though the matter was not on the board, it was taken on the board by the Family Court on 5.12.2007 and the decree of divorce was passed ex-parte on that date itself.

8. It may be mentioned in this connection that the Family Court pre-poned the hearing on wife’s application and in the absence of the husband. Admittedly, the pre-ponement was done ex-parte.

9. In the background of these facts, basically four questions fall for our consideration:

I. Whether impugned decree of divorce passed by the Family Court on 5.12.2007 is vitiated by procedural irregularity?

II. Whether by conducting the proceeding, in the manner it did, the Family Court acted contrary to the avowed object of the Family Courts Act, 1984?

III. Whether from the absence of the husband before the Family Court on 19.11.2007, 1.12.2007 and 4.12.2007 it can be inferred that his consent for grant of divorce on a petition on mutual consent subsists, even though he has not withdrawn the petition for divorce on mutual consent?

IV. Whether on a proper construction of Section 13B (2) of the said Act, which speaks of `the motion of both the parties’, this Court can hold that the Family Court can dissolve a marriage and grant a decree of divorce in the absence of one of the parties and without actually ascertaining the consent of that party who filed the petition for divorce on mutual consent jointly with the other party?

10. This fourth question assumes general importance since it turns on the interpretation of the section. Apart from that, this question is relevant here in view of various recitals in the judgment and decree of the learned Judge of the Family Court. It appears that the Family Court granted the decree of divorce by proceeding on the presumption of continuing consent of the husband.

11. While dealing with the first question about procedural irregularity in the matter, this Court finds that the Family Court did not act properly even if it is held that it was correct in presuming the continuing consent of the respondent- husband.

12. From the sequence of events, it appears that on 19.11.2007 when the matter came up before the Court, the first day after the mandatory period of six months, the husband was absent. The Court directed service of summons on the husband on the request of the wife. The service return was before the Court on 1.12.2007. Looking at the service return, the Court found that service was not a proper one and the Court was also not satisfied with the endorsement of the courier. Under such circumstances, the Court’s direction on the prayer of the appellant-wife, for substituted service under Order 5 Rule 20 of the Civil Procedure Code is not a proper one. Direction for substituted service under Order 5 Rule 20 can be passed only when Court is satisfied “that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way”.

13. In the facts of this case, the Court did not, and rather could not, have any such satisfaction as the Court found that the service was not proper. If the service is not proper, the Court should have directed another service in the normal manner and should not have accepted the plea of the appellant-wife for effecting substituted service. From wife’s affidavit asking for substituted service, it is clear that the servant of the respondent-husband intimated her advocate’s clerk that respondent-husband was out of Bombay and will be away for about two weeks. However, the appellant-wife asserted that the respondent-husband was in town and was evading. But the Court on seeing the service return did not come to the conclusion that the husband was evading service. Therefore, the Court cannot, in absence of its own satisfaction that the husband is evading service, direct substituted service under Order 5 Rule 20 of the Code.

14. Apart from the aforesaid irregularity, the Court, after ordering substituted service and perusing service return on 4.12.2007, fixed the matter for 10.12.2007. Then, on the application of the wife on 5.12.2007, pre-poned the proceeding to 5.12.2007 and on that very day granted the decree of divorce even though the matter was not on the list.

15. This Court strongly disapproves of the aforesaid manner in which the proceeding was conducted in this case. A Court’s proceeding must have a sanctity and fairness. It cannot be conducted for the convenience of one party alone. In any event, when the Court fixed the matter for 10.12.2007, it could not pre-pone the matter on an ex-parte prayer made by the appellant-wife on 5.12.2007 and grant the decree of divorce on that day itself by treating the matter on the board in the absence of the husband. This, in our opinion, is a flagrant abuse of the judicial process and on this ground alone, the decree dated 5.12.2007 has to be set aside.

16. On this aspect, this Court endorses the dissatisfaction expressed by the Bombay High Court in paragraph 34 of its judgment under appeal about the manner in which the date of final hearing was pre-poned and an ex-parte decree was passed.

17. While dealing with the second question it appears that the Family Court has not acted in a manner which is required of it having regard to the jurisdiction vested on it under the Family Courts Act.

18. The Family Courts Act, 1984 (hereinafter, Act 66 of 1984) was enacted for adopting a human approach to the settlement of family disputes and achieving socially desirable results. The need for such a law was felt as early as in 1974 and Chief Justice P.B. Gajendragadhkar, as the Chairman of Law Commission, in the 59th report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954, opined:-

“In our Report on the Code of Civil Procedure, we have had occasion to emphasis that in dealing with disputes concerning the family, the court ought to adopt a human approach – an approach radically different from that adopted in ordinary civil proceedings, and that the court should make reasonable efforts at settlement before commencement of the trial. In our view, it is essential that such an approach should be adopted in dealing with matrimonial disputes. We would suggest that in due course, States should think of establishing family courts, with presiding officers who will be well qualified in law, no doubt, but who will be trained to deal with such dispute in a human way, and to such courts all disputes concerning the family should be referred.”

19. Almost 10 years thereafter when the said Act 66 of 1984 was enacted, the words of the Chief Justice were virtually quoted in its statement of objects and reasons. Consistent with the said human approach which is expected to be taken by a Family Court Judge, Section 9 of the Act casts a duty upon the Family Court Judge to assist and persuade the parties to come to a settlement.

20. In the instant case by responding to the illegal and unjust demand of the wife of pre-poning the proceeding ex-parte and granting an ex-parte decree of divorce, the Family Court did not discharge its statutory obligation under Section 13B (2) of the said Act of hearing the parties. When a proceeding is pre-poned in the absence of a party and a final order is passed immediately, the statutory duty cast on the Court to hear the party, who is absent, is not discharged. Therefore, the Family Court has not at all shown a human and a radically different approach which it is expected to have while dealing with cases of divorce on mutual consent.

21. Marriage is an institution of great social relevance and with social changes, this institution has also changed correspondingly. However, the institution of marriage is subject to human frailty and error. Marriage is certainly not a mere “reciprocal possession” of the sexual organs as was philosophized by I. Kant [The Philosophy of Law page 110, W. Hastie translation 1887] nor can it be romanticized as a relationship which Tennyson fancied as “made in Heaven” [Alymer’s Field, in Complete Works 191, 193 (1878)].

22. In many cases, marriages simply fail for no fault of the parties but as a result of discord and disharmony between them. In such situations, putting an end to this relationship is the only way out of this social bondage. But unfortunately, initially the marriage laws in every country were `fault oriented’. Under such laws marriage can be dissolved only by a Court’s decree within certain limited grounds which are to be proved in an adversarial proceeding. Such `fault’ oriented divorce laws have been criticized as `obsolete, unrealistic, discriminatory and sometimes immoral’ (Foster, Divorce Law Reform; the choices before State page 112).

23. As early as in 1920 possibly for the first time in New Zealand, Section 4 of the Divorce and Matrimonial Causes Amendment Act, 1920 gave the Court the discretion to grant a decree of divorce to parties when they had separated for three years under a decree of judicial separation or separation order by the Magistrate or under a deed of separation or “even by mutual consent”. Till such amendment, divorce after separation by parties on “mutual consent” was unknown.

24. Considering the said amendment of 1920 and exercising the discretion the amended law conferred on the Judge, Justice Salmond in Lodder Vs. Lodder, [1921, New Zealand Law Reports, 876], came to the conclusion that it is not necessary to enquire into the merits of the disputes between the parties since the man and the wife had put an end to their relationship 13 years ago and the learned Judge found that their alienation is “permanent and irredeemable”. The learned Judge also felt that in the circumstances of the case “no public or private interest is to be served by the further continuance of the marriage bond” and a decree for its dissolution was passed. (See page 881). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25. This seems to be the first decision of a Court granting divorce on a `no-fault’ basis and because of the fact that a marriage had broken down for all practical purposes as parties were staying separately for a very long time.

26. The British society was very conservative as not to accept divorce on such a ground but in 1943, Viscount Simon, Lord Chancellor, in the case of Blunt Vs. Blunt, [1943, 2 All ER 76], speaking for the House of Lords, while categorizing the heads of discretion which should weigh with the courts in granting the decree of divorce, summed up four categories but at page 78 of the Report, the Lord Chancellor added a fifth one and the views of His Lordship were expressed in such matchless words as they deserve to be extracted herein below:-

“To these four considerations I would add a fifth of a more general character, which must indeed be regarded as of primary importance, viz., the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce the court to exercise a favourable discretion in many instances where in an earlier time a decree would certainly have been refused”.

27. In India also, prior to the amendment in our laws by insertion of Section 13B in the said Act, the Courts felt the necessity for an amendment in the divorce law. The Full Bench of the Delhi High Court in the judgment of Ram Kali Vs. Gopal Dass – ILR (1971) 1 Delhi 6, felt the inadequacy of the existing divorce law. Chief Justice Khanna (as His Lordship then was) speaking for the Full Bench came to the following conclusion:- “…It would not be a practical and realistic approach, indeed it would be unreasonable and inhuman, to compel the parties to keep up the fagade of marriage even though the rift between them is complete and there are no prospects of their ever living together as husband and wife.” [See page 12].

28. In coming to the aforesaid conclusion, the learned Chief Justice relied on the observation of the Viscount Simon, Lord Chancellor, in the case of Blunt Vs. Blunt (Supra).

29. Within a year thereafter, Hon’ble Justice Krishna Iyer, in the case of Aboobacker Haji Vs. Mamu Koya – 1971 K.L.T. 663, while dealing with Mohammedan Law relating to divorce correctly traced the modern trend in legal system on the principle of breakdown of marriage in the following words:-

“When an intolerable situation has been reached, the partners living separate and apart for a substantial time, an inference may be drawn that the marriage has broken down in fact and so should be ended by law. This trend in the field of matrimonial law is manifesting itself in the Commonwealth countries these days.”(See page 668)

30. In coming to the said finding the learned Judge relied on the principles laid down by Justice Salmond in Lodder Vs. Lodder (supra).

31. After the said amendment in 1976 by way of insertion of Section 13B in the said Act in the 74th Report of the Law Commission of India ( April, 1978), Justice H.R. Khanna, as its Chairman, expressed the following views on the newly amended Section 13B: “Marriage is viewed in a number of countries as a contractual relationship between freely consenting individuals. A modified version of the basis of consent is to be found in the theory of divorce by mutual consent.

The basis in this case is also consent, but the revocation of the relationship itself must be consensual, as was the original formation of the relationship. The Hindu Marriage Act, as amended in 1976, recognizes this theory in section 13B.”

32. On the question of how to ascertain continuing consent in a proceeding under Section 13B of the said Act, the decision in the case of Smt. Sureshta Devi Vs. Om Prakash – (1991) 2 SCC 25, gives considerable guidance.

33. In Paragraph 8 of the said judgment, this Court summed up the requirement of Section 13B (1) as follows:

“8. There are three other requirements in sub-section (1). They are:-

(i) They have been living separately for a period of one year.

(ii) They have not been able to live together, and

(iii) They have mutually agreed that marriage should be dissolved.”

34. In paragraph 10, the learned Judges dealt with sub-section (2) of Section 13B. In paragraphs 11 and 12, the learned Judges recorded the divergent views of the Bombay High Court [Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe – AIR 1982 Bom 302: 86 Bom LR 184], Delhi High Court [Chander Kanta v. Hans Kumar – AIR 1989 Del 73], Madhya Pradesh High Court [Meena Dutta v. Anirudh Dutta – (1984) 2 DMC 388 (MP)], and the views of the Kerala High Court [K.I. Mohanan v. Jeejabai – AIR 1988 Ker 28: (1986) 2 HLR 467: 1986 KLT 990], Punjab and Haryana High Court [Harcharan Kaur v. Nachhattar Singh – AIR 1988 P & H 27: (1987) 2 HLR 184: (1987) 92 Punj LR 321] and Rajasthan High Court [Santosh Kumari v. Virendra Kumar – AIR 1986 Raj 128: (1986) 1 HLR 620: 1986 Raj LR 441] respectively on Section 13B.

35. In paragraphs 13 and 14 of the Sureshta Devi (supra), the learned Judges gave an interpretation to Section 13B (2) and in doing so the learned Judges made it clear that the reasons given by the High Court of Bombay and Delhi are untenable inasmuch as both the High Courts held that once the consent is given by the parties at the time of filing the petition, it is impossible for them to withdraw the same to nullify the petition.

36. We also find that the interpretation given by Delhi and Bombay High Courts is contrary to the very wording of Section 13B (2) which recognizes the possibility of withdrawing the petition filed on consent during the time when such petition has to be kept pending.

37. In paragraph 13 of Sureshta Devi (supra), the learned Judges made the position clear by holding as follows:

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.”

38. Therefore, it was made clear in Sureshta Devi (supra) that under Section 13B (2), the requirement is the `motion of both the parties’ and interpreting the same, the learned Judges made it clear that there should be mutual consent when they move the Court with a request to pass a decree of divorce and there should be consent also at the time when the Court is called upon to make an enquiry, if the petition is not withdrawn and then pass the final decree.

39. Interpreting the said Section, it was held in Sureshta Devi (supra) that if the petition is not withdrawn in the meantime, the Court, at the time of making the enquiry, does not have any jurisdiction to pass a decree, unless there is mutual consent.

40. Learned Judges made it further clear that if the Court makes an enquiry and passes 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 a decree by mutual consent.

41. In paragraph 14 of the said judgment, learned Judges made it further clear as follows:-

“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}.”

42. In paragraph 15 of the judgment, this Court held that the decisions of the High Courts of Bombay, Delhi and Madhya Pradesh cannot be said to have laid down the law correctly and those judgments were overruled. We also hold accordingly.

43. The decision in Sureshta Devi (supra) was rendered by a Bench of two learned Judges of this Court. In a subsequent decision of two learned Judges of this Court in the case of Ashok Hurra Vs. Rupa Bipin Zaveri – (1997) 4 SCC 226, the judgment in Sureshta Devi (supra) was doubted as according to the learned Judges some of the observations in Sureshta Devi (supra) appear to be too wide and require reconsideration in an appropriate case.

44. Learned Judges in Ashok Hurra (supra) made it clear that they were passing the order in that case on the peculiar fact situation. This Court also held that in exercise of its jurisdiction under Article 142 of the Constitution, a decree of divorce by mutual consent under Section 13B of the Act was granted between the parties. (See paragraph 16 and 22 of the report). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

45. It appears that those observations were made by the learned Judges without considering the provisions of the Family Courts Act. In any event, the decision in Ashok Hurra (supra) was considered by a larger Bench of this Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr. – (2002) 4 SCC 388. No doubt was expressed by the larger Bench on the principles laid down in Sureshta Devi (supra). It appears that a petition for review was filed against the two judge decision in Ashok Hurra (supra) and the same was dismissed. Thereafter, the question before the Constitution Bench in Rupa Ashok Hurra (supra) was as follows:-

“Whether the judgment of this Court dated 10.3.1997 in Civil Appeal No.1843 of 1997 [1997 (4) SCC 226] can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be considered by a Constitution Bench of this Court.”

46. In the Constitution Bench decision of this Court in Rupa Ashok Hurra (supra), this Court did not express any view contrary to the views of this Court in Sureshta Devi (supra).

47. We endorse the views taken by this Court in Sureshta Devi (supra) as we find that on a proper construction of the provision in Section 13B (1) and 13B (2), there is no scope of doubting the views taken in Shreshta Devi (supra). In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra (supra) has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.

48. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi (supra).

49. We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13B of the said Act can be passed by the Court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the Court grants the decree, the Court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above.

50. In our view it is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under Section 13B. So in cases under Section 13B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. In the facts of the case, the impugned decree was passed within about three weeks from the expiry of the mandatory period of six months without actually ascertaining the consent of the husband, the respondent herein.

51. It is nobody’s case that a long period has elapsed between the expiry of period of six months and the date of final decree.

52. For the reasons aforesaid, we affirm the view taken by the learned Judges of the Bombay High Court in the order under appeal.

53. The appeal is disposed of as follows:-

(i) On receipt of the copy of this judgment, the Family Court is directed to issue notice to both the parties to appear in the Court on a particular day for taking further steps in the case.

(ii) On that day, the parties are at liberty to engage their own counsel and they may be personally present before the Court and inform the Court as to whether they have consent to the passing of the decree under Section 13B of the Act. If both the parties give their consent for passing of the decree under Section 13B, the Court may pass appropriate orders.

(iii) If any of the parties makes a representation that he/she does not have consent to the passing of the decree, the Court may dispose of the proceedings in the light of the observations made by us.

There shall be no order as to costs.

……………….C.J.I. (K.G. BALAKRISHNAN)

…………………..J. (P. SATHASIVAM)

…………………..J. (ASOK KUMAR GANGULY)

New Delhi

May 11, 2009

ablaa takes 7.5lakhs & refuses mutual consent. Husband runs 2 HC who tells him 2 go file fresh case !

Lots of ppl ask us what is the format for mutual consent AFTER PAYMENT !! we safely tell them we have NO such format ! Here is a Taza case, decreed just 1 week ago, showing a harassed husband who has lost 7.5lakhs and is now running pillar to post ..sorry court to court after wife took the money and showed him the door

Again ladies and gentlemen, I am NOT making this up !!. This is all from reported Judgements of honourable courts !!

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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IN THE HIGH COURT OF JHARKHAND AT RANCHI

F.A. No. 156 of 2014

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Rajeev Ranjan Singh, S/o Sudarshan Singh, Qr. No.3062, Sector 12/B P.O & P.S. -Sector-12, B.S.City, District. Bokaro, Thro’ his father Sri Sudarshan Singh, Power of Attorney Holder ……….. ………..Appellant

Versus-

Shweta Kumari, W/o Rajeev Ranjan Singh, D/o Suresh Prasad Singh, Qr. No.- 1212, Sector 12F, PO&PS-Sector 12, B.S.City, Dist.Bokaro……….Respondent

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CORAM: HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON’BLE MR. JUSTICE P.P. BHATT

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For the Appellant : Mr. Ram Ashray Singh, Advocate
For the Respondent : none

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05/ Dated: 24th August, 2015

Per Virender Singh, C.J.:

1. After arguing for sometime, learned counsel for the appellant sub- mits that in fact the respondent-wife has deceived the appellant and took a clever turn by withdrawing from according consent to the mutual divorce after once agreeing to it, and setting the dispute for good after receiving a sum of Rs.7,50,000/-, vide two different drafts as one time permanent alimony and maintenance. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

2. Learned counsel for the appellant submits that those all settlements arrived at between the parties have been reduced into writing and both the sides had agreed to go ahead with a petition under Section 13(b) of the Hindu Marriage Act.

3. Be that as it may, they all can be said to be a good ground for the appellant to move the court concerned once again seeking decree of divorce but not for the purposes of disturbing the impugned order.

4. Faced with this situation, counsel for the appellant states that he may be allowed to withdraw the instant appeal enabling the appellant-husband to file a fresh petition in the court concerned seeking decree of divorce on all the pleas available to him including the grounds taken herein.

5. Prayer acceded to.

6. Resultantly, the appeal, on hand, stands dismissed as withdrawn with the liberty aforesaid.

(Virender Singh, C.J.) (P.P. Bhatt, J.) Anu/SI/LAK