Wife’s Capability To Earn No Reason To Reduce Maintenance Awarded To Her…

“That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.”


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 125-126 of 2017

(Special Leave Petition (Crl.) No(s). 6025-6026/2013)

SHAILJA & ANR. Appellant(s)

VERSUS

KHOBBANNA Respondent(s)

O R D E R Leave granted.

The matters have been called out twice but there is no appearance on behalf of the respondent.

We have gone through the impugned judgment and order dated 17.04.2013 passed by the High Court and order dated 22.11.2012 passed by the Family Court.

The Family Court had directed payment of maintenance for an amount of Rs.15,000/- per month to the appellant – wife and Rs.10,000/- per month to the son.

The High Court while considering the correctness of the order passed by the Family Court did not accept the contention of the respondent – husband that the appellant – wife was working. All that was held was that the appellant – wife was capable of earning and therefore maintenance was reduced to an amount of Rs.6000/- from Rs.15,000/- for her and Rs.6000/- from Rs.10,000/- for the son

. In other words, out of an amount of Rs.25,000/- (total) awarded by the Family Court for the appellant No.1 and the son, 1 the High Court has reduced the amount to Rs.12,000/- (total).

We are not satisfied with the order passed by the High Court considering the income of the respondent – husband, which we have been told, is more than Rs.80,000/- per month since the respondent – husband is a Senior Lecturer in a college. It is stated by learned counsel for the appellants that the respondent – husband is also the owner of 26 acres of irrigated land.

That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.

Under the circumstances, we set aside the order passed by the High Court and restore the order passed by the Family Court.

It appears that the son has now attained the age of majority. If that is so, the son will be entitled to maintenance only till the age of reaching majority.

Subject to the above, the order passed by the Family Court is affirmed.

2 The appeals are accordingly allowed. ………………….

.J. [MADAN B. LOKUR] …………………..J.

[PRAFULLA C. PANT]

NEW DELHI; JANUARY 18, 2017.

 

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Divorce on ground of wife’s cruel behavior.

. It is settled legal position that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings/complaints amount to causing mental cruelty. (Rel. (2014) 16 SCC 34 K. Srinivas Vs. K. Sunita).

It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the respondent/husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the appellant/wife, agreeing to take a separate accommodation to keep her, statement by the mother-inlaw of the appellant/wife before CAW Cell that let them (parties to the marriage) live happily wherever they want, could not save this marriage. After she left the matrimonial home on April 03, 2004, for the last more than 12 years, she has been litigating not only against her husband and his family members but also do not hesitate to implicate the advocate for her husband in the criminal case as well Sh.Trilochan Singh, a neighbour of her husband.


MAT.APP. (F.C.) 68/2015 Page 1 of 17

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: September 22, 2016

% Judgment Delivered on: September 30, 2016

+ MAT.APP.(F.C.) 68/2015

 

ANU SETH ….. Appellant Represented by: Mr.S.K.Srivastava, Advocate with appellant in person.

versus

SUNIL SETH ….. Respondent Represented by: Mr.Kirti Uppal, Senior Advocate instructed by Mr.P.P.Tiwari and Ms.Sahiba Pantel, Advocates

 

. CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG

HON’BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI, J.

  1. In the case of arranged marriages where both the spouses are in the age group of 30 plus, honeymoon period is the best time to know, understand and come close to each other. This case is an exception in the sense that just a day after the marriage the parties left for their honeymoon to Shimla and returned with bitter memories and a spoiled honeymoon.
  2. Before applying for dissolution of marriage on the ground of cruelty, the respondent/husband has shown exceptional patience in dealing with the problem inspite of facing humiliation and scandalous allegations being made against him and his family members. The case is also different in a way that after staying intermittently at the matrimonial home, within less than three months of the marriage, the appellant/wife left for her parental home and despite the respondent/husband repeatedly visiting and persuading her to join him, she served detailed legal notice making various accusations. MAT.APP. (F.C.) 68/2015 Page 2 of 17
  3. Before replying the legal notice, again the respondent/husband tried to resolve the issues through their counsel by assuring of a separate accommodation for her on the assurance that none from their respective family would interfere for 5-6 months during that period. Even that did not succeed.
  4. When the complaint before CAW Cell was filed on May 26, 2005, the respondent/husband while requesting for a copy of the complaint to properly reply the same the concluding lines written by him are that : ‘I again request the authority to make her understand that marriage is solemnised to form the family and not to destroy the sanskar of marriage please.

’ 5. The respondent/husband had to beat a hasty retreat when FIR No.763/2005 under Sections 498-A/406/34 IPC was registered on August 27, 2005 against him and his other family members including married sister and her husband (jija) and had to run for cover by applying for anticipatory bail. Unfortunately the counsel who applied and obtained anticipatory bail for the respondent/husband and his family from the Court of Law, was also in a soup when in a complaint under Domestic Violence Act, he was impleaded as respondent No.7 though he was in no way in domestic relationship with the appellant.

  1. The voluminous record in this case pertains to a marriage which lasted just for three months. The marriage was solemnised on January 31, 2004. The parties at the time of their marriage were quite mature. While the respondent/husband Sunil Seth was aged about 33 years, the appellant/wife Anu Seth was aged about 31 years at that time. Both are well qualified. The respondent/husband is employed in AIIMS as UDC and the appellant/wife is Graduate and also having vocational skills i.e. Diploma in Boutique Embroidery. MAT.APP. (F.C.) 68/2015 Page 3 of 17

 

  1. The differences started just a day after when the parties went to Shimla for their honeymoon on February 02, 2004. The reasons given by the parties for the unpleasant honeymoon are: (i) As per the respondent/husband, the appellant/wife did not allow him to consummate the marriage and tried her best to avoid him in the process. Not only that, she even threatened to commit suicide if he dare touch her body against her mood, willingness and consent. (ii) The appellant/wife’s stand is that while in Shimla the respondent/husband, who is short tempered and behaves cruelly and gets irritated if anything is said or done against his dictates, declared that the status of a lady in their family is that of ‘a sandal in a foot’ and his words to be treated as God’s words, an averment which did not find mention in the detailed legal notice sent by her on March 14, 2005.
  2. It is admitted case of the parties that after honeymoon when they returned to Delhi, the relationship was unlike a newlywed couple. The appellant/wife had been visiting her parents frequently. However, it is admitted case of the parties that they were behaving normally when both of them were together in Dehradun at the alleged Grehpravesh ceremony at the house of sister of the appellant/wife as well at Hoshiarpur to perform some puja at the behest of the appellant/wife of Mataji at Hoshiarpur i.e. spiritual Guru of wife’s family. Despite puja being performed by the parties at the behest of the appellant/wife and her parents, Mataji did not permit her to join the matrimonial home. It is admitted case of the parties that the appellant/wife left the matrimonial home on April 03, 2004 alongwith her parents at about 11.00 am. It is also not disputed that on April 05, 2004 the respondent/husband visited his wife to bring her back. Thereafter when she served a legal notice, efforts to reconcile were made by him through MAT.APP. (F.C.) 68/2015 Page 4 of 17 respective advocates by holding chamber meetings. Private meetings between the two families to iron out the differences are also admitted by the parties.
  3. Litigation started when the appellant/wife filed a complaint on May 26, 2005 before CAW Cell and FIR No.763/2005 under Section 498-A/406/34 IPC was registered on August 27, 2005 against the respondent/husband and his family. The appellant/wife has also filed a complaint under Domestic Violence Act in January, 2007 wherein sister-inlaw (jethani) and Mr.Kehar Singh, Advocate for the respondent/husband in bail application were not even spared. A maintenance petition under Section 125 Cr.P.C. was also filed by the appellant/wife in January, 2007.
  4. On not being able to make her agreeable to join him, the respondent/husband filed divorce petition bearing HMA No. 1327/14/05 on the ground of cruelty which has been vigorously contested by the appellant/wife.
  5. Perusal of the impugned judgment shows that by referring to the contradictions in the testimony of the witnesses, she also filed application under Section 340 Cr.P.C. which has also been dismissed vide impugned judgment.
  6. Not only that PW-4 Sh.Trilochan Singh – a neighbour who mustered the courage to appear in the Court to depose what he had witnessed on April 03, 2004 when the appellant/wife finally left the matrimonial home in the company of her family members after allegedly creating a scene in the area was taken to task by her. PW-4 Sh.Trilochan Singh was served with the following notice by her through counsel in respect of the statement made by him before the Family Court:- ‘TRILOCHAN SINGHOCTOBER 20, 2008 SON OF LATE S. KIRPAL SINGH MAT.APP. (F.C.) 68/2015 Page 5 of 17 39A, OLD SAHIBPURA, BHUPINDER SINGH NAGAR TILAK WaGAR, NEW DELHI Sir, I am legally wedded wife of Shri Sunil Seth, your neighbour. In the divorce-petition filed by my husband in the court of Shri P.K. Barthwal ADJ, Delhi, you appeared as witness of my husband, on 04- 09-2008 as PW 4. You had filed your affidavit dated 19-12-2007 in examination in chief. In paragraph 3 of the affidavit you stated that “I say that during the last week, o n Sunday of October 2004 about noon, the respondent along, with her parents and one person came to the house of the petitioner, they misbehaved with the family members of the petitioner and created a scene by shouting while standing on the road in front of my house and later on they went along with two suitcases. When the mother of the petitioner tried to pacify the matter, she was pushed and misbehaved very badly by the respondent.” WHEREAS in cross examination you stated that “No scene had been created outside my house. I had not witnessed any manhandling or scuffle at that time.” From the above it is clear that you, in order to support the case of my husband have deliberately, intentionally and knowingly deposed in the court falsely and misled the Hon’ble Court for which I intend to file petition under section 340 Cr.P.C. and other related sections. I call upon you to send reply to my letter. In your deposition, you named one Mrs.Gogi and Mr.Balwinder Singh, her husband but have not given- their address. I have inquired and came to know that there is no neighbour of my husband namely Mrs.Gogi and Mr.Balwinder Singh. I request you to send me the addresses of Mrs.Gogi and Mr.Balwinder Singh as I want to. call them in Court for deposition because you have informed all wrong things, to the Court. I hope you will reply my this letter otherwise I shall file application in MAT.APP. (F.C.) 68/2015 Page 6 of 17 the Hon’ble court for appropriate action, under the law. (ARCHITA@ANUSETH) wife of Shri Sunil Seth H – 46, G.S. Apartments Sector-13, Rohini Delhi-110 085 C.C. – Shri Sunil Seth, with request to ask Mr. Trilochan Singh to furnish the required information in reply to my letter.’
  7. Written submissions have been filed by the parties mainly referring to the various discrepancies appearing in the statement of the witnesses and the evidence adduced by the parties.
  8. With a view to satisfy our judicial conscience about the correctness of the decision rendered by the Family Court granting divorce to the respondent/husband on the ground of cruelty, we will be examining only the following four incidents: (i) Filing criminal case in January, 2007 under Domestic Violence Act after about two years and nine months of leaving the matrimonial home in April, 2004 implicating her jethani Hemlata and Sh.Kehar Singh, Advocate, who represented her husband in bail matter by making false allegations. (ii) Malicious, scandalous and defamatory allegations made by the appellant/wife in the legal notice Ex.PW1/4 dated March 14, 2005 against her husband, mother-in-law, brother-in-law (jeth), married Nanand and Nandoi. (iii) Various threats being extended to the husband and his family to falsely implicate them to the extent that he was constrained to repeatedly report the matter to the police vide DDs Ex.PW2/1, Ex.PW3/1 & Ex.PW3/3. (iv) Making false allegations of dowry demand and demand of a car by the husband and in-laws. MAT.APP. (F.C.) 68/2015 Page 7 of 17
  9. Since all the contentions, as referred to the written submissions by the parties, have been dealt with by the learned Judge, Family Court in the lengthy judgment running into 86 pages, we will not repeat the same exercise by re-examining each and every accusation made by the parties against each other and their family members or the contradictions appearing on some aspects in the testimony of the witnesses.
  10. The accusations made above by the appellant/wife against her husband and in-laws have not been substantiated by any oral or documentary evidence.
  11. Perusal of certified copy of the Criminal Complaint Case No.66/1/07 filed on January 08, 2007 filed under Domestic Violence Act reveals that Sh.Kehar Singh Advocate has been impleaded as R-7 though he is not related to the parties. In the said complaint case, she levelled allegations against all the respondents about dowry demands being made and not bringing a car in dowry. She again referred to 3-4 marriages being performed by her jeth (R-3). Sh. Kehar Singh, Advocate was constrained to serve the appellant/wife with a legal notice through Sh.Prem P.Tiwari, Advocate demanding compensation of ₹10 lacs mentioning therein about the professional services rendered by him by filing anticipatory bail application on behalf of his clients namely Sunil Seth (respondent/husband) his mother Raj Seth, brother Anil Seth as well on behalf of Smt.Seema Rao and Sh.Balwant Rai (married Nanad and Nandoi) in case FIR No.763/2005 under Section 498-A/406/34 IPC, PS Prashant Vihar, which was granted. Para 4 of the notice by him served upon the appellant/wife reads as under:- “4. That you, feeling aggrieved with the professional obligations and duties discharged by my aforesaid client towards his abovesaid five clients, implicate him as a co-accused at serial No.7 in the complaint filed by you under Section 12 of Protection of Women from Domestic Violence Act, 2005 for the grant of relief under Section 18, MAT.APP. (F.C.) 68/2015 Page 8 of 17 19 (i) (f), 20 and 22 of the said Act, with malafide intentions and ulterior motives to cause harassment and tarnish the image of my client at the Bar and in the society. You have intentionally and deliberately dragged my client in the aforesaid complaint without any basis under the Protection of Women from Domestic Violence Act, 2005 which is now pending in the Court of Ms. Rekha, M.M. Rohini Courts, Delhi. In the said complaint all the allegations made by you against my client are totally false, frivolous, baseless, concocted and afterthought. My client has nothing to do with the allegations levelled by you in the said complaint against my client. It is submitted that my client has already submitted a detailed reply to the said complaint and has denied all the allegations in toto.”
  12. The legal notice Ex.PW1/4 dated March 14, 2005 sent by the appellant/wife which was addressed to (1) Sh.Sunil Seth, Husband; (2) Mrs.Raj Seth, Mother-in-law; (3) Mr.Anil Seth, Jeth; (4) Mrs.Simmy Rai, married Nanad; and (5) Mr.Balwant Rai, Nandoi. The relevant paragraphs of the said legal notice read as under:- “Paragraph No.3 “…….that the addressee No.3 have already left 3 wife and is now having 4th spouse namely Smt.Lata Seth. Smt.Lata Seth has been kept in dark to this effect for the reasons best known to you the above addressees. That you the addressee No.4 insisted for an Air conditioned car after the solemnisation of marriage on the pretext that addressee No.2 despite being widow has given 2 wheelar (sick wheeler) in the marriage of addressee No.4.” Paragraph No.10 “That you the addressees No. 2-4 & 5 have got no consideration of social values and are adament (sick adamant) to ruine (sick ruin) the mental peace and married life of my client. The addressee No.3 who is elder brother-in-law (Jeith of my client attempted to maline (sick malign) the modesty of my client but my client saved her sancitity (sick sanctity) from the ill attempts and designs of addressee No.3. My client brought to the knowledge of this incident to addressee No.1 but he ignored the same by saying that such things are common in their family and rebuked my client.” MAT.APP. (F.C.) 68/2015 Page 9 of 17 Paragraph No.11 “That my client was harassed and humilated (sick humiliated) as well as physically and mentally by you all the addressees and compelled her to leave the matrimonail (matrimonial) home on 3.4.2004. Thereafter you the addressees No.2, 4 & 5 insisted my client to have divorce from the addressee No.1 so that the marriage of the addressee No.1 can be solemnised in a rich family. My client in order to collect some clothes went to the matrimonail (sick matrimonial) home on 4-5- 2004 and found that the steel almirah in not openable condition by its key. A key maker person was called who some how managed to open the almirah who stated that almirah’s lock have been damaged by some one, after opening the almirah it was to the utter surprise of my client that clothes, suits, sarees etc. were missing, the above addressees despite being asked avoided to give any reply and made my client a laughing stock, my client could not bear and returned back.”
  13. The respondent/husband has sent the reply Ex.PW1/5 dated May 02, 2005 wherein before replying to the accusations made in the legal notice, he has given the details of the various meetings and the proposed settlement terms which were initially agreed by the parties but subsequently she backed out on the issue of no interference by her family members at least for a period of six months in a rented accommodation.
  14. The two cases filed by the appellant/wife i.e. petition under Section 125 Cr.P.C. and petition under Section 12 of Domestic Violence Act have been dismissed. In the above proceedings in her cross examination the appellant/wife has admitted the following facts: Cross examination of Smt.Archita, petitioner dated 10.08.2011. “……It is correct that on 05.04.2004 my husband came to take me back in the matrimonial home but I refused. Vol. Because my husband had stated that his mother does not want to see her face and I want to take you in the rented accommodation because he has not taken any rented accommodation………” MAT.APP. (F.C.) 68/2015 Page 10 of 17 Cross-examination of Smt.Archita, petitioner dated 14.10.2011. “I stayed in my matrimonial house from 1.2.04 till 3.4.04. I went for 2-3 days to Hoshiarpur with my husband for puja. I went to Honeymoon to Shimla from 2.2.04 to 07.02.04. It is correct that I had visited Dehradun at the place of my elder sister house from 28.3.04 till 30.3.04 along with my husband. It is correct that behavior of my husband was alright in the trip to Hoshiarpur and Dehradun but it is incorrect that his behavior was correct on our honeymoon. I have already mentioned about his misbehavior in honeymoon trip in my petition. It is correct that my husband had visited my parental home on 5.4.04 in order to take me along with him and he also came to take me on 13.2.05. It is wrong to suggest that respondent requested me with folded hands to accompany him but I refused. It is correct that before filing of litigation by either party efforts were made by the side of the respondent and his counsel to talk to me, my parents and my counsel for compromise of the matter. It is correct that on 23.3.05 respondent had offered me to take a premises on rent near his office ie AIIMS if I am ready and willing to live with him. It is also correct that when it was discussed that respondent will take premises on rent near AIIMMS it was also discussed that parents of both parties will not visit that home for about 5 months or 6 months. It is wrong to suggest that a fresh meeting was called on 31.3.05 for finalizing the compromise where my father refused to send me in rented accommodation. It is wrong to suggest that despite deciding that parents of both parties will not interfere in their lives my parents had interfered in our life. It is wrong to suggest that after meeting of 4.4.05 another meeting was called on 12.4.05 for settlement of the dispute. It is correct that in a petition filed by me before Hon’ble High Court of Delhi in 2009 I had admitted that I am still ready and willing to live with my husband. Q: I put to you that although you filed FIR against respondent u/s 498A/406 IPC but still you are willing and ready to live with him. Does it mean that your allegations are incorrect? Ans: I want to live with my husband as he has never demanded anything directly from me or my parents. I had filed the case of 498A against him and his family on the ground that whenever my mother in law and sister in law used to demand anything my husband (respondent) used to remain silent. Within two months of living with him I could not have understood his nature completely. MAT.APP. (F.C.) 68/2015 Page 11 of 17 It is wrong to suggest that whenever my husband had tried to take me with him I had refused on the ground that till the time Puja (Mataji) of our Guru in Hoshiapur is done and she allows me to go I will not go with him. It is wrong to suggest that I have submitted so in my statement in case before Ld. MM dealing with DV case. It is wrong to suggest that whenever my husband approached to take me with him my parents and my family members threatened him by saying that they have approached to higher levels and respondent will have to face the consequences. I had not stated before any Court that I do not want to go with my husband. At this stage witness is confronted with certified copy of her statement EX. PW-1/RX given on 15.09.10 in the case had not stated before any court that I do not want to go with my husband. At this stage witness is confronted with certified copy of Archita vs Sunil in D.V. Case from point A to A………….” “……….. It is correct that husband had never demanded car from me. Vol but he has demanded car from my father when he met him in India Gate meeting. I had inquired from the office of elder brother of respondent about his various marriages, I came to know from Mr Jain who is owner of Enkay Rubber co. that brother of respondent had married 3-4 times………..” Cross-examination of Archita, Petitioner dated 16.11.2011 “I have stated before the Hon’ble High Court in my petition that I am ready to live with my husband without any pre-condition. Just immediate after my marriage, I had gone to my matrimonial home. I was happy with my husband in my matrimonial home. My husband is not smoking or drinking. Respondent had never beaten me and I am confident that I will live happily with my husband in the matrimonial home. My mother in law has also stated in writing in CAW Cell to wish the couple to live happily………..”
  15. In the complaint case bearing No.66/1/07 filed under Section 12 of Domestic Violence Act the appellant/wife impleaded her jethani Hemlata also as respondent despite the fact that prior to that there was no accusation against her in any regard. We have already noted that even Mr.Kehar Singh, Advocate who was a counsel at the time of seeking anticipatory bail was MAT.APP. (F.C.) 68/2015 Page 12 of 17 impleaded as respondent. The petition under Section 12 of Domestic Violence Act has been dismissed on April 29, 2016 for the following reasons: “8. Considering the testimony of complainant which has many contradictions, at one stage complainant has admitted that no act of cruelty committed upon her and that she had cordial relationship with the respondent till she resided at the matrimonial house. It is also admitted by her that incident of Tatapani were not raised in the petition under Section 125 Cr.P.C. and has been raised first time in the present petition. 9. With respect to respondent no. 2 to 7, there is no specific allegation either in the complaint nor in the petition filed by the complainant. With respect to respondent no.2 only allegation has been made that she had demanded AC car and gold bangles and the allegations are undated and not specific despite her short stay at her matrimonial house. Accordingly, complainant has failed to prove that she is an aggrieved person qua respondents no. 2 to 7. 10.With respect to respondent no.1 she has also admitted that only grievance against respondent no. 1 is that he has filed several complaints against her family and threw her against the wall on 03.04.2004, however the said allegations neither mentioned in the affidavit in evidence nor in the petition showing that it is an afterthought.” 22. Vide order dated May 07, 2015 the Petition No.202/2014 filed under Section 125 Cr.P.C. by the appellant/wife was dismissed inter-alia for the following reasons: “40. The petitioner has failed to show that she has sufficient cause for living separately and therefore, is not entitled to any maintenance u/s 125 Cr.PC in any case, she is a graduate and vocationally qualified, but if she chooses to while away her life in motivated prosecution, the respondent cannot be burdened to make payment for such sadistic conduct of the petitioner. Therefore, it is held that the petitioner is not entitled to any maintenance from the respondent. Issue no.1 is accordingly, decided in favour of the respondent and MAT.APP. (F.C.) 68/2015 Page 13 of 17 against the petitioner. ISSUE No.2 RELIEF 41.In view of my findings above on issue no.1, the petition of the petitioner u/w 125 Cr.PC is dismissed. No orders as to costs.”
  16. In the affidavit Ex.RW1/1 by way of evidence filed by the appellant/wife in HMA Petition No.771/2006 her version in paras 20, 23, 26 to 28 is as under:- “20. I also state that at the instance of my husband, my father and brother met the petitioner at India Gate and during the course of meeting my husband, his sister and her husband raised vague and indefinite issues and made false allegations against me. My husband further stated that he finds it difficult to go to his office without car and my father declined to fulfil the said demand of A.C. Car. The sister of the petitioner openly asked my father that in case they are not ready to fulfil the said demand, they would break the marriage as her elder brother had married four times and there was no problem in getting divorce as her brother got divorce two-three times from the court and they are acquainted with the process of the court.”

“23. I also state that on 22.11.2004 at about 8 PM or on 10.1.2005 at 6.45 as alleged or otherwise, I, my father and my brother met the petitioner and his brother and misbehaved with them by using derogatory and filthy language and/or threatened. I also state that the petitioner is a very clever person who in order to create evidence against me is misusing the process of law and has been accustomed to lodge false report with the Police Station with ulterior motives and till date no action has been taken by the police against me or my family members considering the complaint to be false and baseless.” “26. I further state that I have been deserted by my husband without any reasonable cause and excuse and forgetting about the happening of the past, I am ready to join my matrimonial home provided my husband assures me of the affectionate attitude and proper living at the matrimonial home. MAT.APP. (F.C.) 68/2015 Page 14 of 17 27. I state that the FIR bearing No.763/2005 was got registered by me for the valid and cogent reasons being the fact that I was treated with utmost cruelty on account of non fulfillment of dowry demands inasmuch as the behaviour of my husband and his family members caused mental and physical cruelty to me, resulting into ruining my life. 28. I further state that I have also filed an application U/s.125 Cr.P.C. alongwith an interim application for maintenance, besides the filing of the petition U/s.12 of the Domestic Violence Act, and the same are pending adjudication before Ms.Shunali Gupta, M.M. Delhi. The certified copies of both the petitions are Ex.RW-1/9 and RW- 1/10 respectively.”

  1. So far as various threats being extended to the respondent/husband and his family members to implicated them in a false case are concerned, DD No.23A dated October 05, 2004 marked as Ex.PW3/1 was recorded at the instance of the husband at 6:15 PM at PS Rajouri Garden about threat being extended by his wife at Vishal Cinema as well the threats earlier being extended for the previous six months on phone by the appellant/wife and her father that by using political influence they would ruin the respondent/husband and complaints would be made against him in the women cell. DD No.27 dated November 22, 2004 at PS Rajouri Garden Ex.PW3/2 is about threats given to the husband at Bikaner Sweets by the father and brother of his wife to ruin him and his family. The third report was registered vide DD No.18A dated January 10, 2005 at PS Tilak Nagar marked as PW-2/1 whereby he was asked either to pay `5 lakhs or he and his entire family would be implicated in some case/CAW cell.
  2. It may be noted here that demand of air conditioned car was earlier attributed to only Smt.Seema (married Nanad) in the legal notice Ex.PW1/4 dated March 14, 2005 whereas during trial of HMA Petition No.771/2006 MAT.APP. (F.C.) 68/2015 Page 15 of 17 this demand was made by her husband from her father and during the meeting at India Gate where she was not even present

. 26. The appellant/wife has also placed on record the transcript Ex.RW1/5 of the conversations dated 05.05.2004, 30.06.2004, 20.12.2004, 19.03.2005, 18.05.2005, 25.07.2005, 27.07.2005, 09.09.2005 and 23.01.2006 between the parties/family members.

  1. The learned Judge, Family Court has referred to this conversation in paras 69 and 72 to 85 of the impugned judgment. After referring to the above telephonic conversation which was consciously recorded by the appellant/wife or at her instance without other party being aware that the conversation between the two is being tape recorded to be used in litigation, was still found lacking in proving the plea taken by the appellant/wife or the accusations made by her against her husband and in law. Referring to the conversation, in para 69 finding has been returned by the learned Judge, Family Court that the appellant/wife left the matrimonial home of her own with her family member.
  2. The allegations repeatedly made in the legal notice, written statement and other proceedings against jeth that he tried to molest her and that when it was brought to the notice of the husband, he said that it was a family culture, remained unproved. The allegation made that the jeth had married 3-4 times also remained unproved. When his wife appeared Hemlata in the witness box as PW-3, no such question was put to her. The admissions made by the appellant/wife during her cross examination in the proceedings under Domestic Violence Act extracted above shows that it was not a case of dowry demand. The meeting at India Gate on October 03, 2004 when she claimed that the car was demanded by her husband from her father is falsified from her own version recorded in the criminal cases filed by her. MAT.APP. (F.C.) 68/2015 Page 16 of 17 Otherwise also it is highly improbable that after so many meetings in Lawyer’s chamber, at personal level and other places and lot of bitterness being created after she finally left on April 03, 2004, the husband could have demanded a car from her father during meeting at India Gate fixed to save the marriage. One thing is clear from this admission of the appellant/wife that prior to that there was no demand of car though false allegation was made about this demand in the legal notice dated March 14, 2005.
  3. In view of above admitted position as well judicial findings in the cases filed by the appellant/wife herein, the respondent/husband was able to establish that during their honeymoon not only consummation of marriage was resisted by her, even thereafter causing embarrassment and humiliation accusations have been made against him and his entire family. The allegations made against his elder brother by the complainant that he tried to molest her by way of serving a legal notice and also filing complaints implicating not only the husband but his entire family including his married sister and brother-in-law as well his counsel, with a motive to harass them, is nothing but a ruthless act on the part of the appellant/wife to cause mental cruelty and harassment to her husband and his family. It is settled legal position that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings/complaints amount to causing mental cruelty. (Rel. (2014) 16 SCC 34 K. Srinivas Vs. K. Sunita).
  4. From the admissions of the appellant/wife during her cross examination, we have no hesitation to hold that the respondent/husband and his entire family had been subjected to worst kind of mental cruelty by the appellant/wife in this case. In all judicial proceedings, her projection as a victim at the hands of her husband and in-laws or being subjected to cruelty has been disbelieved. The learned Judge, Family Court had given valid MAT.APP. (F.C.) 68/2015 Page 17 of 17 reasons for dissolution of marriage on the issue of cruelty by discussing each and every contention thread bare in the impugned judgment.
  5. It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the respondent/husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the appellant/wife, agreeing to take a separate accommodation to keep her, statement by the mother-inlaw of the appellant/wife before CAW Cell that let them (parties to the marriage) live happily wherever they want, could not save this marriage. After she left the matrimonial home on April 03, 2004, for the last more than 12 years, she has been litigating not only against her husband and his family members but also do not hesitate to implicate the advocate for her husband in the criminal case as well Sh.Trilochan Singh, a neighbour of her husband.
  6. We are of the considered opinion that the conduct of the appellant/wife in the instant case was such that it was not possible for the husband to bear such type of cruelty

. 33. The appeal has no merits and the same is hereby dismissed.

  1. No costs.
  2. LCR be sent back alongwith copy of this order.

PRATIBHA RANI (JUDGE)

PRADEEP NANDRAJOG (JUDGE)

SEPTEMBER 30, 2016 ‘st’

dissolution of marriage/Divorce/Annulment/Separation/divorce by mutual consent under Hindu Marriage Act 1955.

Divorce can be sought by husband or wife on certain grounds, including: continuous period of desertion for two or more years, conversion to a religion other than Hindu, mental abnormality, venereal disease, and leprosy.  Newly married couples cannot file a petition for divorce within one year of marriage.

This Act may be called the Hindu Marriage Act, 1955.

(2) It extends to the whole of India except the State of Jammu and Kashmir 1 , and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

 Application of Act. —

 This Act applies—

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation. —The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. State Amendment Pondicherry: In section 2, insert the following sub-section:— “(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry

Conditions for a Hindu marriage. —A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;

2 [(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity 3 [***];]

(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age of 5 [eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

Ceremonies for a Hindu marriage. —

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. State Amendments Section 7A Pondicherry: After section 7, insert the following section, namely:—

(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

(c) by the tying of the thali.

Restitution of conjugal rights.

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. 8 [ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Judicial separation .—

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Void marriages.

—Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses

(i) , (iv) and (v) of section 5.

Voidable marriages .—

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied—

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 15 [the said ground].

Divorce. —

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 19 [***] 20 [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 21 [***]

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 23 [bestiality; or]

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

 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.]

 

 

 

 

Registration of Hindu marriages in India.

Registration of Hindu marriages. 

A marriage which has already been solemnised can be registered either under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions. Where either of the husband or wife or both are not Hindus, Buddhists, Jains or Sikhs the marriage is registered under the Special Marriage Act, 1954.

Further, marriage can be solemnised between any two persons under the provisions of the Special Marriage Act, 1954.

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

Registration of Marriage under Hindu Marriage Act 1955 in Delhi.

To the office of Sub-Divisional Magistrate in whose jurisdiction any of the husband or wife resides, during 9.30 a.m. to 1.00 p.m. on any working day to obtain the contact address of the SDM in whose jurisdiction in your colony lies.

Documents Required for registration of Marriage in Delhi.

  1. Application form duly signed by both husband and wife.
  2. Documentary evidence of date of birth of parties (Matriculation Certificate / Passport / Birth Certificate) Minimum age of both parties is 21 years at the time of registration under the Special Marriage Act.
  3. Ration card of husband or wife whose area SDM has been approached for the certificate.
  4. In case of Special Marriage Act, documentary evidence regarding stay in Delhi of the parties for more than 30 days (ration card or report from the concerned SHO).
  5. Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality.
  6. Two passport size photographs of both the parties and one marriage photograph.
  7. Marriage invitation card, if available.
  8. If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized the marriage.
  9. Rs. 100/- in case of Hindu Marriage Act and Rs.150/- in case of Special Marriage Act to be deposited with the cashier of District and the receipt should be attached with the application form.
  10. Affirmation that the parties are not related to each other within the prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case may be. For details of such relationships Click here.
  11. Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower.
  12. In case one of the parties belong to other than Hindu, Budhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage(in case of Hindu Marriage Act).

All documents excluding receipt should be attested by a Gazetted Officer

 Hindu Marriage Act

Verification of all the documents is carried out on the date of application and a day is fixed and communicated to the parties for registration. On the said day, both parties, alongwith a Gazetted Officer who attended their marriage, need to be present before the SDM. The Certificate is issued on the same day.

 Special Marriage Act

Both parties are required to be present after submission of documents for issuance of public notice inviting objections. One copy of notice is pasted on the notice board of the office and copy of the notice is sent by registered post to both parties as per address given by them. Registration is done 30 days after the date of notice after deciding any objection that may have been received during that period by the SDM. Both parties alongwith three witnesses are required to be present on the date of registration.

For More detail and latest procedure please visit Delhi govt. website.

Talaq/Divorce Under Muslim Law in India.

TALAQ

In the talaq divorce, the husband pronounces the phrase “I divorce you” (in Arabic, talaq) to his wife. A man may divorce his wife three times, taking her back after the first two (reconciling). After pronouncing Talaq either once or twice or thrice, the man has to wait for 3 menstrual periods before finally letting his wife leave. However, if the couple want to come together after the Talaq is completed, the Quran states that there is no harm in doing so after the wife has married another man and has divorced him (known as ‘Talaq Halala’). Some do a “triple ṭalāq”, in which the man says in one sitting “I divorce you” three times (or “I divorce you, three times”, “you’re triple divorced”

There are two categories of divorce under the Muslim law

1.) Extra judicial divorce, and

2.) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types, namely,

  • By husband- talaaq, ila, and zihar.
  • By wife- talaaq-i-tafweez, lian.
  • By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.

Grounds for decree for dissolution of marriage.-

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:—

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:

Provided that—

(a) no decree shall be passed on ground (iii) until the sentence has become final;

(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

 

 

Divorce under The Special Marriage Act 1954 in India.

 

Divorce under  The Special Marriage Act, 1954

images-123

(1) ] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent— 2[(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); 3[***]

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or 4[(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) has been suffering from venereal disease in a communicable form]; or

(g) has 5[***] been suffering from leprosy, the disease not having been contacted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 6[***] 7[Explanation.—In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] 8[***] 9[***] 7[(1A) A wife may also present a petition for divorce to the district court on the ground,—

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.] 10[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

 

Grounds for Divorce under Special Marriage Act are as follows:

(1)Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent”

(a) has since the solemnization of the marriage committed adultery; or

(b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (Act XLV of 1860): or

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

(e) has been incurably of unsound mind for a continuous period of not less than three years immediately proceeding the presentation of the petition; or

(f) has for a period of not less than three years immediately preceding the presentation of the petition been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or

(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

 

and by the wife on the ground that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

 

 

 Divorce by mutual consent The Special Marriage Act, 1954

 

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together 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) 1[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 district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

Mutual Consent Divorce under sec.13-B of HMA can be withdraw any time.

. In the present case, no petition under Section 13-B of the Act has been filed. The petitioner wants for a decree in divorce suit under Section 13 of the Act, in view of compromise dated 10.10.2014, as this compromise would operate as estoppel against the respondents. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545, held that it is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised.. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. As held by Supreme Court in various cases cited above, the parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.

The Hon’ble Supreme Court in case of  Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.


 

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. – 58 Reserved

Case :- MATTERS UNDER ARTICLE 227 No. – 7414 of 2015
Petitioner :- Ashish Kumar Srivastava
Respondent :-Smt. Ankita Srivastava
Counsel for Petitioner :-Siddhartha Varma, Anup Kumar Srivastava, S.K. Varma
Counsel for Respondent:- Dhirendra Pratap Singh, H.M.B. Sinha

Hon’ble Ram Surat Ram (Maurya),J.
1. Heard Sri S.K. Varma, Senior Advocate, assisted by Sri Siddhartha Varma, for the petitioner and Sri H.M.B. Sinha along with Sri Dhirendra Pratap Singh, for the respondent.
2. This petition has been filed for setting aside the order of Principal Judge Family Court dated 08.10.2015, deferring disposal of application (28-C) filed by the petitioner and fixing a date for framing issues in Divorce Suit and to issue direction to Principal Judge Family Court, to decree Divorce Suit in view of compromise dated 10.10.2014, entered into between the parties.
3. Ashish Kumar Srivastava (the petitioner) married to Smt. Ankita Srivastava (the respondent) according to Hindu rites on 17.05.2011. The petitioner filed a suit on 26.05.2012 (registered as Divorce Suit No. 321 of 2012) under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for grant of decree of divorce. It is alleged that in retaliation to this suit, the respondent initiated following proceedings against the petitioner and his family members:-
(I) Criminal Case No. 721 of 2012, arising out of Case Crime No. 270 of 2012 under Section 498-A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act, PS Shahpur, district Gorakhpur.
(II) Case No. 564 of 2012 under Section 125 Cr.P.C.
(III) Case No. 39 of 2013 under Prevention of Domestic Violence Act, 2005.
(IV) Case No. 116 of 2013 U/S. 406 IPC and 3/4 of Dowry Prohibition Act.
(V) Case No. 1393 of 2013 under Section 323, 504, 506, 379 IPC.
(VI) Case Crime No. 116 of 2013 under Section 504, 506 IPC
(VII) Matrimonial Suit No. 712 of 2013 under Section 9 of Hindu Marriage Act.
4. The petitioner filed an application under Section 482 Cr.P.C. (registered as Criminal Misc. Application U/S 482 Cr.P.C. No. 425 of 2013) for quashing, entire proceeding of Criminal Case No. 721 of 2012, under Section 498-A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act, PS Shahpur, district Gorakhpur. This Court vide order dated 18.01.2013 referred the dispute to Mediation and Conciliation Center., Allahabad. The parties settled their dispute before Mediator, who submitted report dated 11.09.2013. Under the settlement the petitioner had to pay Rs. 18,00,000/- as one time permanent alimony to the respondent and permit her to take ornament from bank locker. After compliance of this condition, the respondents agreed to withdraw all the complaints and suit filed by her. Divorce Suit No. 321 of 2011 has to be decreed. When the case was listed before this Court on 09.09.2014, the petitioner took time for payment of aforesaid amount as such 09.10.2014 was fixed before this Court. On 09.10.2014, the petitioner gave two bank drafts of Rs. 18,00,000/- in favour of the respondents in Court. The case was adjourned for 10.10.2014 in order to enable the parties to file written compromise. On 10.10.2014, the parties filed joint affidavit in the shape of compromise, incorporating aforementioned terms. Both the parties appeared before the Court on 10.10.2004 and filed joint affidavit in shape of compromise. Two bank drafts of Rs. 18,00,000/- was handed over to the respondent by the Court. Criminal Misc. Application U/S 482 Cr.P.C. No. 425 of 2013 was allowed and Criminal Case No. 721 of 2012 was quashed by order dated 10.10.2014.
5. The petitioner filed an application (18-C) dated 22.10.2014, before Principal Judge Family Court, for decreeing Divorce Suit No. 321 of 2012 in view of the compromise dated 10.10.2014, the aforesaid. The respondent filed an application before this Court for recalling order dated 10.10.2014. When application (18-C) came for hearing before Principal Judge Family Court, the respondent raised an objection that as she had filed an application for recalling order dated 10.10.2014 as such disposal of application (18-C) be postponed. On which Principal Judge Family Court did hear the application (18-C) on 07.01.2015. This Court by order dated 24.07.2015 rejected the recall application filed by the respondent for recalling the order dated 10.10.2014.
6. Then the petitioner filed another application (28-C) dated 30.07.2015, before Principal Judge Family Court, for decreeing Divorce Suit No. 321 of 2012 in view of the compromise dated 10.10.2014, the aforesaid, stating therein that recall application filed by the respondent has been rejected. By the impugned order dated 08.10.2015, disposal of this application was deferred holding that divorce on compromise can only be granted according to provisions of Section 13-B and not in proceeding under Section 13 of the Act. The petitioner filed an appeal (registered as First Appeal No. 596 of 2015) under Section 19 of Family Court Act, 1984, against aforesaid order which was dismissed by order dated 18.11.2015 on the ground that the order dated 08.10.2015 was an interlocutory order and the appeal was not maintainable. Hence, this petition has been filed.
7. The counsel for the petitioner submitted that Section 28 of Special Marriage Act, 1954 provides for mutual divorce. Legislature thought it proper to provide more easy procedure of divorce to Hindus also. By Act No. 68 of 1976, Section 13-B was added under of the Act which provided divorce by mutual consent. Thereafter, Family Court Act, 1984 was enacted. Section 9 of Act, 1984 castes a statutory duty upon Family Courts to persuade the parties to settle their dispute in respect of the subject-matter of the suit. By virtue of Section 10 of the Act, 1984, entire provisions of Code of Civil Procedure, 1908 have been applied to the proceeding before Family Court. Thus provisions of Order 23 Rule 3 C.P.C. is applicable in the proceeding before Family Court. A combined reading of provisions of Section 9 and 10 of the Act, 1984 makes it clear that Family Court at first instance will persuade the parties to settle their dispute in respect of the subject-matter of the suit and if such settlement is arrived then they can file a compromise before Family Court in the suit and suit can be decided in terms of compromise. The suit for divorce under Section 13 of the Act, 1955 is not an exception to the application to Section 9 and 10 of the Act, 1984. As such suit for divorce can also be decided in terms of compromise. Phrase “Subject to the provisions of this Act” used under Section 13-B means in accordance with the provisions of Section 23 of the Act. The compromise operates as estoppel against the parties to it as held by Supreme Court in Nagubai Ammal Vs. B. Shama Rao, AIR 1956 SC 593. The compromise dated 10.10.2014 was duly signed by the parties and verified by this Court in presence of the parties. It is a lawful compromise and has been acted upon in part. The respondent took Rs. 18,00,000/- and ornaments from locker as agreed under this compromise. She had taken benefit of compromise. It is an estoppel by deed as well as estoppel by record. She is now estopped from raising objection that suit for divorce cannot be decreed in terms of compromise, as held by Supreme Court in S. Shanmugam Pillai Vs. K. Shanmugam Pillai, AIR 1972 SC 2059. This Court in Jodhey Vs. State AIR 1952 SC 788 held that High Court has unlimited judicial power. This compromise can be treated as “family settlement”. It acknowledges right and liability of the parties and can be enforced under the law as held by Supreme Court in Sahu Madho Das Vs. Mukund Ram, AIR 1955 SC 481. This Court in Jokhan Vs. Ram Deo, AIR 1967 All 212 has held that the compromise cannot be ignored only for the reason that compromise was entered before the Court which has no jurisdiction. Supreme Court in B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749, held that power conferred under Article 142 of the Constitution is also available to High Court for doing compete justice between the parties. Family Court placed reliance upon the judgment of Supreme Court in Sanjeeta Das Vs. Tapan Kumar Mohanti, (2010) 10 SCC 222. This judgment has not taken any notice of Section 9 and 10 of Family Court Act, 1984 as such it is per-incuriam and does not lay binding precedent as held by Supreme Court in State of U.P. Vs. Synthetins and Chemicals Ltd. (1991) 4 SCC 139. Otherwise also in this case, there was no clause for divorce in the compromise. This Court in Indrawal Vs. Radhey Ram, AIR 1981 All 151 and Supreme Court in Dr. (Mrs) Leena Roy Vs. Dr. Subrato Roy, AIR 1991 SC 92 and Raj Kumar Rana Vs. Rita Rathore, AIR 2015 SC 2668, decreed divorce petition under Section 13 of the Act, on compromise. Impugned order is illegal and liable to be set aside and Family Court is liable to be directed to decree the divorce suit in view of compromise dated 10.10.2014.
8. I have considered the arguments of counsel for the parties and examined the record. Old Hindu law did not allow divorce amongst Hindus of upper communities. In communities of lower strata of Hindus, custom relating to divorce was prevalent. After independence, Special Marriage Act, 1954 was enacted, which is applied to persons whose marriage was performed and registered under that Act for divorce. Section 27 provides for divorce and Section 28 provides for mutual divorce under this Act. Thereafter, Hindu Marriage Act, 1955 was enacted and provisions relating to divorce was provided under Section 13 for all the Hindus and its sub-sect. Thereafter, legislature thought to provide more easy procedure of divorce to Hindus. By Act No. 68 of 1976, Section 13-B was added under of the Act which provided divorce by mutual consent. Supreme Court in Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301, held that once the marriage has been solemnized among Hindus then it cannot be dissolved, except on the grounds enumerated in Section 13, of Hindu Marriage Act, 1955 or according to Section 13-B. Section 13-B of Hindu Marriage Act, 1955 is quoted below:-
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.]

9. Aim and object of enactment of Family Court Act, 1984 was to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Under Section 7 of this Act, jurisdiction of Family Court was conferred to exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation to Section 7 of the Act. Thus Family Court has to exercise same jurisdiction, which is exercisable by the Court under the law. Thus it is clear that if a petition is filed under the provisions of Hindu Marriage Act, 1955, then Family Court will exercise jurisdiction that Act only. So far as application of Civil Procedure Code, 1908 is concerned, procedure provided under it has to be followed for exercising jurisdiction Hindu Marriage Act, 1955. In case of contradiction, provisions of Hindu Marriage Act, 1955 would have overriding effect. The counsel for the petitioner relied upon Section 9 and 10, of Family Court Act, 1984 which are quoted below:-
9. Duty of Family Court to make efforts for settlement.– (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit of proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.
10. Procedure generally.–(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) (2 of 1974), before a Family Court and for the purposes of the said provisions of the Code, Family Court shall be deemed to be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made there under, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.
20. Act to have overriding effect.–The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

10. A bare reading of the aforesaid provisions shows that although Act, 1984 has an overriding effect but Section 7 of the Act provides for Family Court to exercise jurisdiction conferred under the Act, in which petitions enumerated in Explanation to Section 7 have been filed. For trial of suit for divorce under Section 13 of Hindu Marriage Act, 1955, Family Court has to follow the procedure of C.P.C. but decree of divorce can be granted only on the grounds enumerated under Section 13 of the Act. Hindu Marriage Act, 1955 provides two modes for divorce namely (i) on the grounds mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six they again attorn their consent before the Court. It is well settled principle that when the statute provides a particular procedure for doing an act then the act has to be done according to that procedure and not at all. In this respect judgment of Supreme Court in K.S. Saini Vs. H.C. Delhi, (2012) 4 SCC 307 may be referred.
11. Issue as the whether consent given at the initial stage for divorce can be withdrawn at the later stage came for consideration before Supreme Court in Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, in which it has been held that from the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the 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.
Sub-section (2) requires the court to hear the parties which means both the parties. If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the court cannot pass a decree of divorce by mutual consent. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard”.

12. Again a Bench of three Hon’ble Judges of Supreme Court in Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, held that we are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B 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 fact situation, discussed above.
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 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B 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. Same view has been taken in Sanjeeta Das v. Tapan Kumar Mohanty, (2010) 10 SCC 222, in which it has been held that more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties dehors the grounds enumerated under Section 13 of the Act, unless of course the consenting parties proceed under Section 13-B of the Act.
13. Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.
14 In Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, it has also been held that the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably.
15. In the present case, no petition under Section 13-B of the Act has been filed. The petitioner wants for a decree in divorce suit under Section 13 of the Act, in view of compromise dated 10.10.2014, as this compromise would operate as estoppel against the respondents. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545, held that it is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised.. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. As held by Supreme Court in various cases cited above, the parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.
16. In view of aforesaid discussions, this petition has no merit and is dismissed.
Order Date :- 8.4.2016
Jaideep/-