Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of hearing and order: 19 January 2015.
+ MAT.APP.(F.C.) 5/2015
CHANDAN ..... Appellant
Through: Ms. Mukti Singh and Mr. Sunil
Kumar Sinha, Advocates
versus
DIPTI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
O R D E R
%
KAILASH GAMBHIR, J. (ORAL)
C.M. Appl. No. 977/2015 & 979/2015 (Exemptions)
Exemption allowed subject to just exceptions.
Applications stand disposed of.
C.M. Appl. No. 976/2015 (condonation of delay)
By this application filed under Section 5 of the Limitation Act read
with Section 151, CPC, the appellant seeks condonation of delay of 35 days
in filing the accompanying appeal under Section 19(1) of the Family Courts
Act. For the reason stated in the application, the same is allowed and the
delay of 35 days in filing the accompanying appeal is condoned.
Application stands disposed of.
Mat. App. (FC) No.5/2015 Page 1 of 6
MAT. APP. (F.C.) No. 5/2015 & C.M. Appl. No. 978/2015 (Directions)
1. This is an appeal by the appellant-husband under section 19 (1) of the
Family Courts Act, 1984 calling in question the tenability of the judgment
dated 05.11.2014 passed by the learned District and Principal Judge, South-
West District, Family Court, Dwarka, New Delhi, whereby a joint petition
filed by the parties under Section 13- B of the Hindu Marriage Act, 1955
seeking dissolution of marriage by decree of divorce by mutual consent has
been dismissed.
2. The grievance raised by the appellant in the instant appeal is that the
respondent wife had agreed to file the joint divorce petition after having
fully gone through the contents of the same and only after prolonged and
detailed talks between the parties but thereafter failed to present herself
before the Family Court to give her statement. The learned counsel for the
appellant also submits that the disputes between the parties were settled with
the intervention of the Vasant Vihar Police Station, where the appellant –
husband had returned all the gift items to the respondent – wife and besides
that, he had paid a sum of Rs.5.5 lacs to the respondent. The learned counsel
for the appellant thus submits that having received the settled amount and
the gift items, the respondent took a somersault in not causing appearance
Mat. App. (FC) No.5/2015 Page 2 of 6
before the learned Family Court to give her statement in support of the joint
motion petition for oblique motives. Counsel further submits that in this
manner, the respondent is trying to subvert and misuse the law with malafide
intention to extort more money from the petitioner.
3. We have heard the submissions made by the learned counsel for the
appellant and have gone through the material on record.
4. Indisputably, the respondent – wife did not come forward to record
her statement before the learned Family Court after the joint divorce petition
was presented by them, at the stage of first motion. It is an admitted position
that no formal MOU or settlement was arrived at between the parties and
therefore, we find that the Family Court was correct in observing that it
can’t give any finding as to under what circumstances the respondent had
backed out and not presented herself before the court. The learned Family
Court is also correct in observing that the court cannot force the respondent
– wife to give her statement in support of the petition. Section 13-B of the
Hindu Marriage Act, 1955 is a special provision where under the parties can
seek divorce by mutual consent. The expression ‘mutual’ cannot be diluted
and if any of the parties to the marriage fail to present herself or himself
st nd
before the court, after the presentation of the 1 and the 2 motion petitions,
Mat. App. (FC) No.5/2015 Page 3 of 6
then there will not be any mutuality in the act of the parties. Mere signing
and filing of the present petition by both the parties does not mean that the
parties need not present themselves before the court after filing the divorce
petition. The parties are necessarily required to appear before the court to
give their statements and then based on the statements and upon satisfaction
of the Court, first motion petition will be allowed. Thereafter, it is also
envisaged under the Act that after the expiry of six months, the second
motion petition for mutual consent divorce should be filed by the parties and
they are required to reappear before the Court. A gap of six months is given
between the two motions to afford the estranged couple adequate time to
reconsider their decision of dissolving their marriage. After hearing the
husband and wife, if the Court is satisfied that all the grounds and
requirements for the divorce have been met, the couple is granted a decree
of divorce by mutual consent. It is not the case of the appellant here that
under some agreement or MOU, the respondent had derived the benefits and
later turned around and resiled from the settlement. The learned Family
Court is correct in observing that it may not be in a position to find out the
circumstances due to which the respondent – wife did not come forward to
present herself to give her statement before the court. It is a settled legal
Mat. App. (FC) No.5/2015 Page 4 of 6
position that either of the parties to the petition may withdraw their consent,
at any time before a decree of divorce by mutual consent is passed. For a
decree of divorce by mutual consent to be passed, there needs to be a
complete agreement between the estranged couple for the dissolution of
marriage and the Court needs to be convinced about the same. Otherwise the
essence of the words “divorce by mutual consent” would be lost. [ Ref :
Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234] .
5. The judgments in the case of Jayshree Ramesh Londhe vs. Ramesh
Bhikhaji Londhe, AIR 1984 Bom. 302 passed by the High Court of
Judicature at Bombay and in the case of Chandra Kanta v. Hans Kumar,
AIR 1989 Del. 73 , passed by this Court, as relied upon by the counsel for
the appellant have no relevance to the facts of the present appeal. However,
the Hon’ble Supreme Court in the case of Smt. Sureshta Devi vs. Om
Prakash, (1991) 2 SCC 25 , held that the Court has no jurisdiction to pass a
decree of divorce by mutual consent, if there is no mutual consent at the
time of the inquiry. The Court needs to be satisfied about the bona fides and
the consent of the parties. The Court further went on to observe that the
mutual consent to the divorce is a sine qua non for passing a decree for
divorce under Section 13-B and the mutual consent should persist till the
Mat. App. (FC) No.5/2015 Page 5 of 6
divorce decree is passed. The consent must continue to decree nisi and must
be valid and subsisting when the case is heard.
6. In the case at hand, though the parties had filed their joint petition
under Section 13-B of the Hindu Marriage Act, 1955, the respondent chose
not to appear before the Family Court during the first motion petition,
therefore, the learned Family Court was right in dismissing the joint petition
filed by the parties.
7. In view of the aforesaid discussion, we find no illegality or infirmity
in the impugned judgment dated 5.11.2014 passed by the learned District
and Principal Judge, South-West District, Family Court, Dwarka, New
Delhi. Finding no merit in the present appeal, the same is hereby dismissed.
Consequentially, the pending applications are also disposed of.
KAILASH GAMBHIR, J
I.S.MEHTA, J
JANUARY 19, 2015
pkb
Mat. App. (FC) No.5/2015 Page 6 of 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of hearing and order: 19 January 2015.
+ MAT.APP.(F.C.) 5/2015
CHANDAN ..... Appellant
Through: Ms. Mukti Singh and Mr. Sunil
Kumar Sinha, Advocates
versus
DIPTI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
O R D E R
%
KAILASH GAMBHIR, J. (ORAL)
C.M. Appl. No. 977/2015 & 979/2015 (Exemptions)
Exemption allowed subject to just exceptions.
Applications stand disposed of.
C.M. Appl. No. 976/2015 (condonation of delay)
By this application filed under Section 5 of the Limitation Act read
with Section 151, CPC, the appellant seeks condonation of delay of 35 days
in filing the accompanying appeal under Section 19(1) of the Family Courts
Act. For the reason stated in the application, the same is allowed and the
delay of 35 days in filing the accompanying appeal is condoned.
Application stands disposed of.
Mat. App. (FC) No.5/2015 Page 1 of 6
MAT. APP. (F.C.) No. 5/2015 & C.M. Appl. No. 978/2015 (Directions)
1. This is an appeal by the appellant-husband under section 19 (1) of the
Family Courts Act, 1984 calling in question the tenability of the judgment
dated 05.11.2014 passed by the learned District and Principal Judge, South-
West District, Family Court, Dwarka, New Delhi, whereby a joint petition
filed by the parties under Section 13- B of the Hindu Marriage Act, 1955
seeking dissolution of marriage by decree of divorce by mutual consent has
been dismissed.
2. The grievance raised by the appellant in the instant appeal is that the
respondent wife had agreed to file the joint divorce petition after having
fully gone through the contents of the same and only after prolonged and
detailed talks between the parties but thereafter failed to present herself
before the Family Court to give her statement. The learned counsel for the
appellant also submits that the disputes between the parties were settled with
the intervention of the Vasant Vihar Police Station, where the appellant –
husband had returned all the gift items to the respondent – wife and besides
that, he had paid a sum of Rs.5.5 lacs to the respondent. The learned counsel
for the appellant thus submits that having received the settled amount and
the gift items, the respondent took a somersault in not causing appearance
Mat. App. (FC) No.5/2015 Page 2 of 6
before the learned Family Court to give her statement in support of the joint
motion petition for oblique motives. Counsel further submits that in this
manner, the respondent is trying to subvert and misuse the law with malafide
intention to extort more money from the petitioner.
3. We have heard the submissions made by the learned counsel for the
appellant and have gone through the material on record.
4. Indisputably, the respondent – wife did not come forward to record
her statement before the learned Family Court after the joint divorce petition
was presented by them, at the stage of first motion. It is an admitted position
that no formal MOU or settlement was arrived at between the parties and
therefore, we find that the Family Court was correct in observing that it
can’t give any finding as to under what circumstances the respondent had
backed out and not presented herself before the court. The learned Family
Court is also correct in observing that the court cannot force the respondent
– wife to give her statement in support of the petition. Section 13-B of the
Hindu Marriage Act, 1955 is a special provision where under the parties can
seek divorce by mutual consent. The expression ‘mutual’ cannot be diluted
and if any of the parties to the marriage fail to present herself or himself
st nd
before the court, after the presentation of the 1 and the 2 motion petitions,
Mat. App. (FC) No.5/2015 Page 3 of 6
then there will not be any mutuality in the act of the parties. Mere signing
and filing of the present petition by both the parties does not mean that the
parties need not present themselves before the court after filing the divorce
petition. The parties are necessarily required to appear before the court to
give their statements and then based on the statements and upon satisfaction
of the Court, first motion petition will be allowed. Thereafter, it is also
envisaged under the Act that after the expiry of six months, the second
motion petition for mutual consent divorce should be filed by the parties and
they are required to reappear before the Court. A gap of six months is given
between the two motions to afford the estranged couple adequate time to
reconsider their decision of dissolving their marriage. After hearing the
husband and wife, if the Court is satisfied that all the grounds and
requirements for the divorce have been met, the couple is granted a decree
of divorce by mutual consent. It is not the case of the appellant here that
under some agreement or MOU, the respondent had derived the benefits and
later turned around and resiled from the settlement. The learned Family
Court is correct in observing that it may not be in a position to find out the
circumstances due to which the respondent – wife did not come forward to
present herself to give her statement before the court. It is a settled legal
Mat. App. (FC) No.5/2015 Page 4 of 6
position that either of the parties to the petition may withdraw their consent,
at any time before a decree of divorce by mutual consent is passed. For a
decree of divorce by mutual consent to be passed, there needs to be a
complete agreement between the estranged couple for the dissolution of
marriage and the Court needs to be convinced about the same. Otherwise the
essence of the words “divorce by mutual consent” would be lost. [ Ref :
Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234] .
5. The judgments in the case of Jayshree Ramesh Londhe vs. Ramesh
Bhikhaji Londhe, AIR 1984 Bom. 302 passed by the High Court of
Judicature at Bombay and in the case of Chandra Kanta v. Hans Kumar,
AIR 1989 Del. 73 , passed by this Court, as relied upon by the counsel for
the appellant have no relevance to the facts of the present appeal. However,
the Hon’ble Supreme Court in the case of Smt. Sureshta Devi vs. Om
Prakash, (1991) 2 SCC 25 , held that the Court has no jurisdiction to pass a
decree of divorce by mutual consent, if there is no mutual consent at the
time of the inquiry. The Court needs to be satisfied about the bona fides and
the consent of the parties. The Court further went on to observe that the
mutual consent to the divorce is a sine qua non for passing a decree for
divorce under Section 13-B and the mutual consent should persist till the
Mat. App. (FC) No.5/2015 Page 5 of 6
divorce decree is passed. The consent must continue to decree nisi and must
be valid and subsisting when the case is heard.
6. In the case at hand, though the parties had filed their joint petition
under Section 13-B of the Hindu Marriage Act, 1955, the respondent chose
not to appear before the Family Court during the first motion petition,
therefore, the learned Family Court was right in dismissing the joint petition
filed by the parties.
7. In view of the aforesaid discussion, we find no illegality or infirmity
in the impugned judgment dated 5.11.2014 passed by the learned District
and Principal Judge, South-West District, Family Court, Dwarka, New
Delhi. Finding no merit in the present appeal, the same is hereby dismissed.
Consequentially, the pending applications are also disposed of.
KAILASH GAMBHIR, J
I.S.MEHTA, J
JANUARY 19, 2015
pkb
Mat. App. (FC) No.5/2015 Page 6 of 6