Otherwise also in the above cited decision in Mr. Prakash Kalandari Vs. Mrs. Jahnavi Kalandari (supra) there are specific observations of the Hon'ble Apex Court, quoted by the Division Bench of this Court. In fact, those observations of the Apex Court were from the decision in the case of Smt. Sureshta Devi v. Om Prakash reported in MANU/SC/0718/1991: [1991] 1SCR 274. In those observations of the Hon'ble Apex Court the provisions of Section 13-Bof the Hindu Marriage Act were discussed with much emphasis on the aspect as to the period of six months. The observations of the Hon'ble Apex Court in paragraphs 13 to 15 in the case of Smt. Sureshta Devi V. Om Prakash (supra) and which are reproduced in the case of Mr. Prakash Kalandari Vs. Mrs. Jahnavi Kalandari (supra) are reproduced hereunder with advantage:
11. Applying the above exposition of the Hon'ble Apex Court it must be said that definitely there is a room for either party to the marriage to resile from its earlier consent and whether or not to allow such party to withdraw its consent is a question to be determined by the Court on the backdrop of the facts of the individual case."13) From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under 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 decrees. This appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties.... if the petition is not withdrawn in the meantime, the court shall..... pass a decree of divorce...." What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.14) Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. [See (i) Halsbury laws of England, Fourth Edition, Vol. 13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol.1 P. 291 and (iii) Beales v. Beales,1972 (2) All E.R., 667 at 674.]15) In our view, the interpretation given to the section by the High Courts of Kerala, Punjab and Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view. The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra) cannot be said to have laid down the law correctly and they stand overruled."
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Ishita kunal sangani
Vs.
Kunal Sudhir Sangani
FAMILY COURT APPEAL NO. 230 OF 2014
IN
INTERIM APPLICATION NO. 71 OF 2014
IN
M.J.PETITIN NO. A-685 OF 2013
WITH
CIVIL APPLICATION NO. 291 OF 2014
IN
F.C.A.NO. 230 OF 2014
CORAM : SMT.V.K.TAHILRAMANI AND
SHRI.A.R.JOSHI, JJ.
DATED : OCTOBER 07, 2014
Citation: 2014(6)ABR767, 2015(1)ALLMR282
preferred by the present Petitioner-wife challenging the order
below Exh. 1 dated 30.7.2014 by which the application Exh. 28
preferred by the present respondent-husband was granted by
the Judge, Family Court No.5, Mumbai. At this juncture, it must
be mentioned that the said application Exh. 28 was Interim
presented by the present
Application No. 71 of 2014
respondent-husband before the Family Court in the Petition No.
A-685 of 2013. As the issue involved in the present Appeal is
validity or otherwise of the order passed granting divorce to
the parties, the present Appeal is being disposed of at the
2
admission stage itself.
Without going into much details as to on what basis
the matrimonial dispute arose between the parties, suffice it to
say that the present respondent-husband had filed a Marriage
Petition bearing No. A- 685 of 2013 for decree of divorce on the
ground of cruelty as per Section 13(1)(i-a) of the Hindu
Marriage Act, 1955. During the pendency of the said petition,
the matter was referred for mediation and was brought before
the Judge-Mediator.
Apparently, the matter was settled
Terms
on
14.2.2014.
Admittedly,
the
said
between the parties by drawing a sort of Mediation Settlement
Mediation
Settlement Terms were signed by the husband and wife and
their respective parents. The said Settlement Terms were also
verified by the Judge-Mediator. The said Settlement Terms are
the basis for the present respondent-husband to prefer Interim
Application No. 71 of 2014 being Exh. 28 asking for the orders
ig
from the Family Court to honour the said Settlement Terms and
put to an end to the matrimonial disputes between the parties
in terms of the said settlement.
A detailed order was passed by the Family Court
3
Bandra, Mumbai on the said Interim Application Exh. 28. The
said order was passed on 30.7.2014.
The date of the said
Settlement Terms and the date of the application and the order
from the Family Court in view of the said Settlement Terms and
date of final order which is impugned, are of much significance.
For the sake of ready reference, the said dates can be
mentioned, inasmuch as the Mediation Settlement Terms were
arrived at on 14.2.2014, Application No. 71 of 2014 Exh. 28
was preferred on 1.3.2014 and the said application was
granted dissolving the marriage between the parties on
30.7.2014. If it is considered that the said Settlement Terms
arrived at before the Mediator are to be acted upon and to be
given effect as if the same is application under Section 13B of
the Hindu Marriage Act, still the period of six months had
definitely not elapsed when the impugned order was passed on
30.7.2014.
4
Considering the above basic factual position, now
coming to the arguments advanced on behalf of the present
petitioner-wife, it is to be mentioned that apparently the
petitioner-wife had not acted in terms of the said Settlement
Terms mainly on the ground that there was much emotional
pressure on her at the time of signing the said Mediation
Settlement Terms. In order to appreciate this argument, the
crux of the said Settlement Terms can be mentioned with
advantage. In para 1 of the said Settlement Terms, it was
specifically mentioned that permanent custody of daughter to
be given by the respondent-wife to the petitioner-husband on
17.2.2014.
At the end of para no.1, it is mentioned to the
following effect:
“The respondent-wife shall have right of access which
The petitioner-husband shall take
respondent-wife.
shall be resolved between the petitioner-husband and
absolute care of the daughter Miraaya.”
5
In our considered view, the words in paragraph 2 of
the said Settlement Terms are of much significance which read
thus:
“Parties have agreed for divorce by mutual consent.
An application for conversion of the petition into a
petition for divorce by mutual consent shall be jointly
submitted by both the spouses.”
In paragraph 3 of the said Settlement Terms it is
6
specifically mentioned that the petitioner shall pay Rs. 1 crore
and Rs.11 lakhs to the respondent-wife towards her alimony
and amount shall be deposited in the Court by way of Demand
Draft in the name of Principal Judge, Family Court, Mumbai and
the respondent-wife shall be entitled to withdraw the said
amount from the Court after divorce decree. At the end of the
said Settlement Terms, it is again reiterated that the amount
shall be deposited in the Court on 18.2.2014 and on the same
day, application for conversion of the petition into a petition for
divorce by mutual consent shall be filed. The words here are
very specific as it is agreed between the parties that the
application for conversion of the petition into a petition for
divorce by mutual consent, was “must” to be filed as the word
“shall” is used.
Bearing in mind the above factual position, it must be
7
such
application
filed
mentioned that in the present case at the end, there was no
either
for
converting
the
original
application preferred by the husband for divorce on the ground
of cruelty or a separate independent application under Section
13B of the Hindu Marriage Act, 1955. In our considered view,
this factual position has been overlooked by the Family Court
while allowing the application Exh. 28 preferred by the
respondent-husband.
8
It must be mentioned that the period of six months
contemplated by law for giving effect to the application filed by
consent under Section 13B of the Hindu Marriage Act, 1955, is
with some specific logic as to give a room to either party to
withdraw from the consent if such necessity occurs within six
months from the lodging of the application. Ofcourse whether
or not to allow any party to withdraw its consent within the said
facts can be taken recourse to.
period of six months, is a question of fact and hardly parity on
In the present case, the
learned counsel for the respondent-husband had placed
reliance on the decision in the case of Mr. Prakash Alumal
Kalandari Vs. Mrs. Jahnavi Prakash Kalandari reported in AIR
2011 Bom. 119.
Much emphasis was placed on the ratio propounded
by the above authority of the Division Bench of this Court and it
is argued on behalf of the respondent husband that the
consent was granted by any party to the marriage, for
dissolution of the marriage in view of the terms and conditions
of the settlement, either party is not allowed to repudiate its
consent. This is more so when another party had acted on the
consent terms. We have carefully gone through the said cited
authority (Mr Prakash Kalandari Vs. Mrs Jahnavi Prakash
Kalandari) (supra) it must be mentioned that under the peculiar
facts of that matter the Division Bench of this Court came to
the conclusion that it was not within the rights of then
appellant husband to withdraw his consent for getting divorce
under section 13-B of the Hindu Marriage Act. In our considered
view, the specific facts of that matter prompted the Division
Bench to uphold the order of the Family Court rejecting the
application of the husband and not allowing him to withdraw
his consent. What the Division Bench has observed was to the
effect that the wife had already acted upon the consent terms
arrived at and had already withdrawn her criminal cases filed
against the husband. Moreover, she had also forgone her right
of maintenance and as such the Family Court and also the
Division Bench came to the conclusion that the ground
mentioned by the husband for withdrawal of his consent cannot
sustain. The said ground was to the effect that access to the
small child was not given to the husband and as such that had
prompted him to withdraw his consent for dissolution of
marriage by way of compromise under the provisions of
Section 13-B of the Hindu Marriage Act. Moreover, in that
matter the Family Court and also the Division Bench of this
Court came to the conclusion that the husband could not have
the access of the child as during the relevant period he was in
jail custody in some criminal matter and as such it was not the
fault of the wife for not giving access of the child to the
husband.
9
At the cost of repetition, it must be mentioned that
the decision in the above referred case will not come to the
rescue of the present respondent husband as the present case
at hand is required to be dealt with in different fact situation
and more specifically in the light of the factual position that
initially petition of the husband, present respondent, was for
divorce on the ground of cruelty whereas initially it was
opposed by the present appellant wife but during the
mediation process some consent terms were arrived at.
Moreover, it is a factual position that no application under
Section 13-B of the Hindu Marriage Act was preferred by the
parties and at the cost of repetition it must be said that it was
the condition imposed in the said consent terms in paragraph
2.
Moreover, the impugned order allowing the application
Exh.28 of the present respondent-husband and dissolving the
marriage between the parties do not in any way solve the
aspect of access of the child to the wife.
Otherwise also in the above cited decision in Mr
10
Prakash Kalandari Vs. Mrs Jahnavi Kalandari (supra) there are
specific observations of the Hon'ble Apex Court, quoted by the
Division Bench of this Court. In fact, those observations of the
Apex Court were from the decision in the case of Smt.Sureshta
Devi v. Om Prakash reported in MANU/SC/0718/1991:[1991]
1SCR 274. In those observations of the Hon'ble Apex Court the
provisions of Section 13-B of the Hindu Marriage Act were
discussed with much emphasis on the aspect as to the period
of six months. The observations of the Hon'ble Apex Court in
paragraphs 13 to 15 in the case of Smt.Sureshta Devi V. Om
Prakash (supra) and which are reproduced in the case of Mr
Prakash Kalandari Vs. Mrs Jahnavi Kalandari (supra) are
reproduced hereunder with advantage:
"13)
From the analysis of the Section, it will be
apparent that the filing of the petition with mutual
consent does not authorise the court to make a decree
for divorce. There is a period of waiting from 6 to 18
months. This interregnum was obviously intended to
give time and opportunity to the parties to reflect on
their move and seek advice from relations and friends.
In this transitional period one of the parties may have a
second thought and change the mind not to proceed
with the petition. The spouse may not be a party to the
joint motion under 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 decrees.
This appears to be untenable. At the time of the petition
by mutual consent, the parties are not unaware that
their petition does not by itself snap marital ties. They
know that they have to take a further step to snap
marital ties. Sub-section (2) of Section 13-B is clear on
this point. It provides that "on the motion of both the
parties .... if the petition is not withdrawn in the
meantime, the court shall ..... pass a decree of
divorce ...." What is significant in this provision is that
there should also be mutual consent when they move
the court with a request to pass a decree of divorce.
Secondly, the court shall be satisfied about the bona
fides and the consent of the parties. If there is no
mutual consent at the time of the enquiry, the court
gets no jurisdiction to make a decree for divorce. If the
view is otherwise, the Court could make an enquiry and
pass a divorce decree even at the instance of one of the
parties and against the consent of the other. Such a
decree cannot be regarded as decree by mutual
consent.
14) Sub-section (2) requires the Court to hear the
parties which means both the parties. If one of the
parties at that stage says that "I have withdrawn my
consent", or "I am not a willing party to the divorce",
the Court cannot pass a decree of divorce by mutual
consent. If the Court is held to have the power to make
a decree solely based on the initial petition, it negates
the whole idea of mutuality and consent for divorce.
Mutual consent to the divorce is a sine qua non for
passing a decree for divorce under Section 13-B. Mutual
consent should continue till the divorce decree is
passed. It is a positive requirement for the Court to pass
a decree of divorce. "The consent must continue to
decree nisi and must be valid subsisting consent when
the case is heard. [See (i) Halsbury laws of England,
Fourth Edition, Vol. 13 para 645; (ii) Rayden on Divorce,
12th Ed. Vol.1 P. 291 and (iii) Beales v. Beales, 1972 (2)
All E.R., 667 at 674.]
15)
In our view, the interpretation given to the
section by the High Courts of Kerala, Punjab and
Haryana and Rajasthan in the aforesaid decisions
appears to be correct and we affirm that view. The
decisions of the High Courts of Bombay, Delhi and
Madhya Pradesh (supra) cannot be said to have laid
down the law correctly and they stand overruled."
Applying the above exposition of the Hon'ble Apex
Court it must be said that definitely there is a room for either
party to the marriage to resile from its earlier consent and
whether or not to allow such party to withdraw its consent is a
facts of the individual case.
question to be determined by the Court on the backdrop of the
In our considered view, definitely the Family Court
should have considered the said Settlement Terms in proper
perspective and more so; when the contents of paragraph 2 of
the said Settlement Terms mentioned regarding conversion of
the application by both the parties under Section 13B of the
Hindu Marriage Act. Moreover, this matter can be viewed in a
different perspective as according to the Settlement Terms
arrived at before the learned Mediator, initially the entire
custody of the child then aged about two years, was agreed to
be given to the husband but subsequently the present
petitioner had come with a plea as to in what circumstances
those Consent Terms were arrived at. If it is accepted that the
said Consent Terms were arrived at with full consent and
knowledge, still all the clauses in the Consent Terms should
have been given effect to prior to putting an end to the
matrimonial tie between the parties by way of dissolution of
marriage specifically on the basis of the Consent Terms and
giving the entire custody of the small child in favour of the
husband. Again it must be mentioned that the impugned order
speaks to the effect that the application Exh. 28 i.e. Application
No. 71 of 2014 was allowed and there is no clarification as to
the access of the child whether to be given to the present
petitioner-wife or whether she is entitle or not.
In fact, that
aspect was must to have been discussed by the Family Court
while passing the impugned order, more so; in the light of the
Consent Terms.
13
In the result, we allow the present appeal and set
aside the impugned order and remand the matter back to the
Family Court, Mumbai for reappraisal. Rival contentions of the
parties are left open to be pleaded before the Family Court in
the pending petition for divorce preferred by the husband.
14
In view of the disposal of the Family Court Appeal,
Civil Application No. 291 of 2014 does not survive and is
15
disposed of accordingly.
Upon oral request on behalf of the respondent, the
effect and operation of this order, is stayed for a period of six
kandarkar
[SMT. V.K.TAHILRAMANI, J.]
[SHRI.A.R.JOSHI, J. ]
weeks from today.
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