Prasanna Kumar Hota vs Rama Rani Hota
- Court
- Delhi High Court
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15.10.2026
# CNR No. DLHC010148082026
+ MAT.APP.(F.C.) 126/2026
PRASANNA KUMAR HOTA .....Appellant
Through: Mr Amit Khemka, Ms Tanvi
Aggrawal and Ms Pragya
Yadav, Advocates
versus
RAMA RANI HOTA .....Respondent
Through: Mr. Raj kumar Nahataa, Mr.
Gaurav Gupta, Ms. Nidhi
Singh, Mr. Abhishek Samal,
Mr. Abhishek Pareek,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT (ORAL)
1. The challenge is the present appeal is to the order dated
06.02.2026 passed by the learned Family Court, rejecting the
application filed by the appellant herein for the recall of the order
dated 05.01.2018 and restore the Divorce proceedings being, HMA
No. 13 of 2012 to its original number.
2. The appellant and the respondent are both senior citizens. The
marriage between the parties was solemnized on 27.05.1969. It is
stated that the parties started living separately since 2012. The
marriage between the parties was not a very happy one and there is
long standing marital discord between the parties. The
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appellant/husband filed a petition seeking a decree of divorce under
Section 13(1)(1-A) of the Hindu Marriage Act, 1955 against the
respondent on the ground of cruelty.
3. Though, the said proceedings were contested by the respondent,
a settlement agreement dated 12.12.2017 was arrived at inter se the
parties in mediation before the mediation centre, Saket Court. Clause
7, 8 and 10 of the settlement agreement which are necessary for
adjudication of the present appeal and on which the case of the
appellant revolves are reproduced and read as under:-
“ 7. The Parties agree to not interfere in
any manner in the respective lives of
each other. The First Party will be at
full liberty to lead her life in any
manner she likes and deal with her
properties (ie. Family Residential
Property and Servant Quarter Property
and any other property she acquires in
any manner she likes Second Party will
neither claim nor enter into the above-
said properties of First Party during
and after the lifetime of First Party.
8. Similarly, the Second Party will be at
full liberty to lead his own separate life
according to his own choice; and he
can deal with his properties and
personal affairs in any manner he likes.
The First Party undertakes not to enter
into properties of the Second Party
during and after the life time of Second
Party.
10. The Parties are free take any step
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they think fit to amend their official and
personal papers to establish that they
are no longer living together as
spouses, and are leading their separate
lives with separate identity.”
4. In view of the said settlement agreement, both the parties
withdrew the various proceedings which were pending amongst the
parties. The appellant also withdrew the divorce proceedings on
05.01.2018. The entire order sheet seeking withdrawal of the
proceedings dated 12.12.2017 and 05.01.2018 is reproduced and read
as under:-
“12.12.2017.
Present: Plaintiff with counsel Sh. Mohit
Kumar
Defendant no. 1 with counsel Sh. Mrinal
Kumar Sharma
Fresh w/n filed by the plaintiff counsel.
Parties have jointly submitted that the
matter is pending before the Ld. Mediator,
Saket Court. Plaintiff has submitted that
she may be allowed to withdraw the suit
qua defendant no. 2, 3 and 4. Her
statement in this regard recorded
separately. Accordingly, the suit stands
dismissed as withdrawn qua defendant no.
2, 3 and 4.
At this stage, parties have prayed that
matter may be relisted at 2 p.m. today
itself as they have to appear before the Ld.
Mediator with the copy of this order for
recoding of the compromise.
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Be awaited for 4 p.m. Copy of order be
given dasti to the parties as prayed for.
Sd/-
(Surya Malik Grover)
ADJ-1(South East) Saket Court
New Delhi/12.12.2017(ds)”
“12.12.2017.
(at 4 p.m.)
Present: Plaintiff with counsel Sh. Mohit
Kumar
Defendant no. 1 with counsel Sh. Mrinal
Kumar Sharma
Matter has been taken up again as an
order received from the Mediation Center
whereby the dispute between the parties
stand settled. Today, statement of the
plaintiff qua settlement and withdrawal of
the suit recorded separately. Statement of
defendant no. 1 qua settlement as well as
withdrawal of the counter claim has also
been recorded separately.
In view of the statements of the plaintiff
and defendant no.1 and also in view of the
Mediation settlement Ex.P1, present suit
stands disposed of as settled as withdrawn
alongwith counter claim of defendant
no.1. Court fees be returned to the plaintiff
in terms of 16 Court fees Act. File be
consigned to record room.
Sd/-
(Surya Malik Grover)
ADJ-1(South East) Saket Court
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New Delhi/12.12.2017(ds)”
“12.12.2017.
Present: Plaintiff with counsel Sh. Mohit
Kumar
Defendant no. 1 with counsel Sh. Mrinal
Kumar Sharma
Fresh v/n filed by the plaintiff counsel.
Parties have jointly submitted that the
matter is pending before the Ld.
Mediator, Saket Court. Plaintiff has
submitted that she may be allowed to
withdraw the suit qua defendant no. 2, 3
and 4. Her statement in this regard
recorded separately. Accordingly, the
suit stands dismissed as withdrawn qua
defendant no. 2, 3 and 4.
At this stage, parties have prayed that
matter may be relisted at 2 p.m. today
itself as they have to appear before the
Ld. Mediator with the copy of this order
for recoding of the compromise.
Be awaited for 4 p.m. Copy of order be
given dasti to the parties as prayed for.
Sd/-
(Surya Malik Grover)
ADJ-1(South East) Saket Court
New Delhi/12.12.2017(ds)”
“Statement of Ms. Rama Rani Hota,
Plaintiff.
On SA
I have settled my dispute with defendant
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no. 1 Vol. Without any force, pressure or
coercion before Mediation Centre, Saket
today itself. There is a Deed of settlement
executed between me and defendant no.1.
The same is a part of settlement arrived
before Mediation Centre. The Order of
Mediation Centre and the Deed of
settlement is exhibited as Ex. P1
collectively.
In view of the settlement, I pray that my
suit may be disposed of as settled /
withdrawn. Further, I have no objection
if the counter claim filed by the defendant
no. 1 may be allowed to be withdrawn in
view of the settlement arrived. I further
pray that my Court fee may also be
allowed to be refunded.”
“Statement of Sh. Prasanna Kumar Hota,
Defendant no. 1/counter-claimant
On SA
I have settled my dispute with plaintiff
Vol. Without any force, pressure or
coercion before Mediation Centre, Saket
today itself. There is a Deed of settlement
executed between me and plaintiff. The
same is a part of settlement arrived
before Mediation Centre. The Order of
Mediation Centre and the Deed of
settlement is exhibited as Ex. P1
collectively.
In view of the settlement, I have no
objection if the suit of the plaintiff may
be allowed to be withdrawn as settled. I
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pray that my counter claim may also be
allowed to be withdrawn as settled in
view of the aforesaid settlement.”
“Statement of Ms. Rama Rani Handa,
Plaintiff.
On SA
I state that I may be allowed to withdraw
the present suit qua defendants no. 2, 3
and 4 as I do not wish to pursue the
present case against the aforesaid
defendants. Further, I am undergoing
settlement talks with defendant no. 1 i.e.
my husband before the Ld. Mediator.”
“05.01.2018
Present:- Petitioner in person with Sh.
G.A. Khan & Sh. Mahesh Kumar, Advs.
File taken up on an application seeking
early hearing.
Petitioner submits that he be permitted to
withdraw the present petition, as he has
settled all pending disputes with the
respondent. Settlement arrived at before
the Mediation Center, Saket is placed on
record and exhibited as Ex. C-1.
Separate statement of the petitioner has
been recorded.
Allowed, as prayed for.
Present petition is dismissed as
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withdrawn.
Date already given for 25.01.2018 stands
cancelled.
File be consigned to record room.
On request, copy of this order be given
dasti to the petitioner/counsel.”
5. It is a case of the appellant that he has complied all the terms of
the settlement. He has paid a sum of Rs. 18 lakhs to the respondent.
He has executed and registered a relinquishment deed in favour of the
respondent, forsaking his claim in the designated property C-244,
ground floor & basement, Defence Colony, New Delhi. He has also
transferred property bearing no. 55A/8, Gali No. 8, Himipur, Arjun
Nagar, New Delhi.
6. He states that after performing his part under the settlement
deed, the appellant approach the respondent to file the first motion
under the Section 13B of the HMA but the respondent refused to file
the same.
7. The appellant, therefore, moved to the Family Court with an
application although titled as seeking recall of the withdrawal order
dated 05.01.2018 but with a prayer to grant a formal decree of divorce
to the appellant, as the spousal relationship between the parties has
ended. The Family Court has rejected the said application by
observing that the Settlement Deed dated 12.12.2017 did not contain
any stipulation obligating the parties to seek divorce by mutual
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consent under Section 13B of the Hindu Marriage Act, 1955. It held
that Clause 10 of the Settlement Deed merely permitted the parties to
take appropriate steps to amend their official and personal documents
to reflect their separate identities and the fact that they were no longer
living together as spouses, which could not be construed as an
agreement to file a petition for divorce by mutual consent. The
relevant portion of the Impugned Order is reproduced as under:-
“The case of applicant is that due to
failure of non-applicant to agree to file
a divorce petition by mutual consent
under Section 13 B of HMA in terms of
Settlement Deed, his divorce petition
should be restored. This Court is
unable to see anything either in the
Mediation Settlement dated 12.12.2017
or Settlement Deed dated 12.12.2017 to
the effect that the parties had agreed to
take divorce by mutual consent under
Section 13 B of HMA. Ld Counsel for
applicant has also failed to show the
same. Term/ clause10 of the Settlement
Deed merely gives right to parties to
take any step deemed fit to amend their
official and personal papers to establish
that they were living their lives
separately with separate identity and
that they were no longer living together
as spouses. Same does not mean by any
stretch of imagination that it was
agreed between them that they will file
petition for divorce by mutual consent.
In the absence of any such stipulation in
the Settlement Deed/ Mediation
Settlement, non-applicant cannot be
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held responsible for its breach. The
judgment of Hon’ble Apex Court in
Anurag Mittal Vs. Shelly Mittal Civil
Appeal No.18312 of 2017 is
distinguishable on facts.”
(emphasis supplied)
8. The learned counsel for the appellant contents that the parties
had intended to settle their disputes through the settlement agreement
which forms part of the order of the learned Family Court dismissing
the said petition as withdrawn. The deed of settlement shows that the
parties had agreed for a divorce and therefore the respondent must be
asked to give a divorce or the petition seeking decree of divorce has to
be restored back to its original number, for further proceedings.
9. Per contra, learned counsel for the respondent states that the
petitioner has withdrawn the petition under Order 23 Rule 1(4) of the
CPC and he is now precluded from moving such an application.
10. Heard the learned counsel for the parties.
11. A perusal of the entire settlement agreement shows that the
same does not indicate that the parties had agreed to move a petition
for divorce by mutual consent under Section 13B of the HMA.
12. Even if the settlement agreement was the reason for withdrawal,
there is no decree that is passed under Order 23 Rule 3 CPC disposing
of the suit in terms of the settlement agreement. The order only states
that since the parties have entered into a settlement, the appellant
herein is withdrawing the said proceedings.
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13. It is also come on record that after settlement agreement, the
appellant/husband has married again without obtaining a formal
decree of divorce from the respondent. The withdrawal is
unconditional and therefore Order 23 Rule 1(4) would apply in the
facts of the case. The Order 23 Rule 1(4) is reproduced as under:-
“ 1. Withdrawal of suit or
abandonment of part of claim.—
(1) At any time after the institution of a
suit, the plaintiff may as against all or
any of the defendants abandon his suit
or abandon a part of his claim:
Provided that where the plaintiff is a
minor or other person to whom the
provisions contained in rules 1 to 14 of
Order XXXII extend, neither the suit nor
any part of the claim shall be
abandoned without the leave of the
Court
(2) An application for leave under the
proviso to sub-rule (1) shall be
accompanied by an affidavit of the next
friend and also, if the minor or such
other person is represented by a
pleader, by a certificate of the pleader
to the effect that the abandonment
proposed is, in his opinion, for the
benefit of the minor or such other
person.
(3) Where the Court is satisfied,—
(a) that a suit must fail by reason of
some formal defect,
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or
(b) that there are sufficient grounds for
allowing the plaintiff to institute
a fresh suit for the subject
matter of suit or part of a
claim, it may, on such terms as it thinks
fit grant the plaintiff permission to
withdraw from such suit or such
part of the claim with liberty to
institute a fresh suit in respect of the
subject-matter of such suit or such part
of the claim.
( 4) Where the plaintiff—
(a) abandons any suit or part of claim
under sub-rule (1), or
(b) withdraws from a suit or part of a
claim without the permission referred
to in sub-rule (3), he shall be
liable for such costs as the Court may
award and shall be precluded from
instituting any fresh suit in respect of
such subject-matter or such part of the
claim.”
Emphasis
Supplied.
14. There is no provision in the CPC which gives the power to the
Court to recall a decree and to the restore suit to its original number.
The decree is one of dismissal of suit on the ground of withdrawal of
the suit. An application for grant of divorce in terms of settlement
agreement cannot be permitted because Section 13B of the Hindu
Marriage Act postulates as to how a divorce by mutual consent can be
granted. The Section 13B of the HMA is reproduced as under:-
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“13B. Divorce by mutual consent.—
(1) Subject to the provisions of this Act
a petition for dissolution of marriage by
a decree of divorce may be presented to
the district court by both the parties to a
marriage together, whether such
marriage was solemnized 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 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.]”
15. Section 13B of the Hindu Marriage Act, 1955, provides that a
petition for divorce by mutual consent must be jointly filed by both
parties, stating that they have been living separately for at least one
year, have been unable to live together and have mutually agreed to
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dissolve their marriage. After the first motion, the parties must
ordinarily file a second motion between six and eighteen months from
the date of presentation of the petition. The Court, upon being
satisfied that the statutory requirements are fulfilled and that mutual
consent continues, may pass a decree of divorce. Without following
that procedure, a party cannot be compelled to agree for a divorce by
mutual consent.
16. The coordinate bench of this Court in Rajat Gupta v. Rupali
Gupta , 2018 SCC OnLine Del 9005, while considering the effect of a
settlement agreement and an undertaking to obtain divorce by mutual
consent, held that the statutory requirement of mutual consent under
Section 13B of the Hindu Marriage Act, 1955, cannot be dispensed
with on the strength of a prior settlement or undertaking. The Court
observed that mutual consent must subsist from the stage of filing the
first motion until the decree of divorce is passed, and that a party
cannot be compelled to consent to divorce merely on the basis of an
earlier settlement. Accordingly, a settlement agreement, by itself,
cannot form the basis for a decree of divorce by mutual consent
without compliance with the statutory procedure prescribed under
Section 13B of the Act. The relevant portions are reproduced herein
below.
“33. It can be seen from the above that the
Supreme Court has held that mutual consent is an
indispensable condition for passing a decree of
divorce under Section 13B of the Act and such a
mutual consent should continue from the time of
filing the First motion petition, till the divorce
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decree is passed and the marital ties finally
snapped. The underlying thread of Section 13B is
the mutuality aspect, a factor that should remain
in force from the starting point i.e., the date when
the parties jointly file the First motion petition
under Section 13B(1) to the stage when they file
the Second motion petition under Section 13B(2),
till a final decree for divorce by mutual consent is
granted by the concerned court.
xxxxx
60.On a conspectus of the case law discussed
above, the four questions of law framed by the
learned Single Judge are answered thus:-
Question (A) Whether a party, which has under a
settlement agreement decreed by a Court
undertaken to file a petition under Section 13B(1)
or a motion under Section 13B(2) of the Act, 1955
or both and has also undertaken to appear before
the said Court for obtaining divorce can be held
liable for contempt, if the said party fails to file or
appear in the petition or motion or both to obtain
divorce in view of the option to reconsider/renege
the decision of taking divorce by mutual consent
under Section 13B(2) of the Act?
Answer: (a) The answer to Question (A) is yes.
The distinguishing feature of Section 13B of the
Act, 1955 is that it recognizes the unqualified and
unfettered right of a party to unilaterally
withdraw the consent or reconsider/renege from a
decision to apply for divorce by mutual consent,
notwithstanding any undertaking given in any
legal proceeding or recorded in any
settlement/joint statement, in or outside the court,
resulting in a consent order/decree, to cooperate
with the other spouse to file a petition under
Section 13B(1) or a second motion under Section
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13B(2) of the Act, or both. Withdrawal of the
consent even at the stage of the enquiry, as
contemplated under Section 13B(2), is also in
exercise of the right available to a party under the
very same provision. In other words, the mutuality
of the consent to divorce should commence from
the stage of filing the First motion under Section
13B(1) and it should continue at the time of
moving the Second motion under Section 13B(2)
of the Act, till such time that the court completes
the enquiry and a decree of divorce is finally
passed . The said element of mutual consent is a
sine qua non for passing a decree of divorce.
This being the legal position, the defaulting
party cannot be compelled to file or appear in the
petition or motion or both, to obtain divorce by
mutual consent.
(b ) Any other view will not only impinge on the
jurisdiction of the court which has an obligation
under the Statute to undertake an independent
enquiry before passing a decree of divorce by
mutual consent, it will also encroach upon a
statutory right vested in a party under Section
13B(2) of the Act and go against the very spirit
of the provision, at the heart of which lies the
right of a party to reflect/revisit and retract from
its decision of going ahead for grant of divorce
by mutual consent, during the cooling off period.
(c) At the same time, a defaulting party can be
held liable for civil contempt on the ground of
breaching the terms and conditions incorporated
in an undertaking given to the court or made a
part of a consent order/decree.
In the event the aggrieved party approaches the
court for initiation of contempt proceedings
against the defaulting party for willful/deliberate
breach of any of the terms and conditions of an
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undertaking/settlement agreement/consent order
or a decree and takes a plea that as a
consequence thereof, he/she has been placed in a
disadvantageous position or has suffered an
irreversible/grave prejudice, the court in exercise
of its inherent powers of contempt, supplemented
by the 1971 Act has the requisite jurisdiction to
entertain the petition and direct restoration of
status quo ante in every possible way. Besides
directing the defaulting party to disgorge all the
benefits/advantages/privileges that have/would
have enured in its favour and restoring the parties
to the position that was before they had arrived at
such a settlement/agreement/undertaking and/or
before the consent order/decree was passed in
terms of the settlement arrived at/undertakings
recorded, the court has the discretion to punish
the defaulting party for civil contempt, depending
on the facts of a given case. Thus, contempt
jurisdiction operates in a different field and is
uninfluenced by the fetters imposed on a court
under the Act of 1955 . The only rider to the above
is that no direction can be issued even in
contempt proceedings to compel the defaulting
party to give its consent for a decree of divorce
by mutual consent, as it is opposed to the object,
policy and intent of Section 13B of the Hindu
Marriage Act. ”
(Emphasis
Supplied)
17. In view of the above, the application which is for restoration of
the suit is not maintainable after the same withdrawn unconditionally.
This Court does not find any infirmity in the order of the learned
Family Court rejecting the application on the ground that once the suit
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stands unconditionally withdrawn, even though there is a settlement
agreement, it cannot be said that the respondent was in breach of the
same despite her unwillingness to file the first motion.
18. This Court is not making any comment as to whether an
application for execution of the said decree is permissible or not. It is
always open for the appellant to take recourse to the remedies as
available to him in accordance with the law.
19. In view of the above discussion, the present appeal along with
the pending application, if any, stands dismissed.
SUBRAMONIUM PRASAD, J
RENU BHATNAGAR, J
OCTOBER 15, 2026 /NG/KZ
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