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हिंदू विवाह अदिनियम् -हिन्दू विरोदी व पक्ष पाती

November 29, 2014 Leave a comment

टोकाच्या स्वभावभिन्नतेमुळे अनेक विवाह मोडतात. घटस्फोटासाठी हे कारण नवीन कायद्यामुळे उपलब्ध होणार आहे. तसेच, घटस्फोटानंतर पत्नी व मुलांना पतीकडील मालमत्तेत हिस्सा व नुकसानभरपाईही मिळू शकेल. घटस्फोटविषयक प्रस्तावित कायद्याचा आलेख…हिंदू विवाह हा करार नसून संस्कार आहे. प्राचीन हिंदुधर्मशास्त्रास घटस्फोट ही संकल्पनाच मान्य नव्हती. भारतीय संसदेने “हिंदू विवाह कायदा-1955‘ हा क्रांतिकारक कायदा संमत केला. त्याने सर्व हिंदूंना लागू होणाऱ्या घटस्फोटास परवानगी देणाऱ्या तरतुदी केल्या. व्यभिचाराचे कृत्य, क्रूर वागणूक, दोन वर्षांपेक्षा अधिक काळ जोडीदाराने सोडून जाणे, धर्मांतर, दुर्धर मानसिक रोग, संसर्गजन्य गुप्तरोग, संन्यास घेणे, सात वर्षांपेक्षा अधिक काळ परांगदा होणे यांपैकी किमान एखादे तरी कारण न्यायालयात सिद्ध झाले, तर घटस्फोटाची मुभा या कायद्याने दिली.वैधानिक विभक्तता किंवा वैवाहिक हक्कांची पुनर्स्थापना, यासाठी न्यायालयाचा आदेश होऊनही त्याची पूर्तता एका वर्षात न झाल्यासही घटस्फोट मिळू शकतो. तसेच बलात्कार, समलिंगी किंवा अनैसर्गिक लैंगिक कृत्य, असा गुन्हा पतीकडून घडल्यास पत्नीस घटस्फोट मागण्याचा अधिकार आहे.घटस्फोटासाठी आवश्यक अटी जाचक असल्याची टीका झाल्याने 1976ची कायदा दुरुस्ती सरकारने केली व पती-पत्नी यांना मिळून घटस्फोटासाठी अर्ज करण्यास परवानगी देण्यात आली. परंतु, असा अर्ज करण्यापूर्वी किमान एक वर्षाच्या काळात त्यांना एकत्र राहणे शक्य झाले नव्हते, असे सिद्ध होणे गरजेचे आहे.घटस्फोटासाठीची वरील कारणे नसणारी;परंतु असह्य व टोकाच्या स्वभावभिन्नतेमुळे किंवा एकमेकांच्या खटकणाऱ्या जीवनशैलीमुळे, सवयीमुळे सहजीवन अशक्य असणारी असंख्य जोडपी असतात. घटस्फोटासाठी संमती अर्ज करण्यापुरतेही त्यांचे सहकार्य नसते. मी स्वत: मुक्त झालो किंवा झाले नाही तरी चालेल; पण त्याला/तिला मी मोकळे सोडणार नाही, समोरची व्यक्ती जन्मभर सडत राहिली पाहिजे, अशी द्वेषाची भावना असणारी जोडपी आहेत. त्यामागे आर्थिक, लैंगिक व इतर कारणे असतात. असे विवाह आतून मोडून पडलेले असतात. या प्रकारच्या पराभूत विवाहितांना जन्मभर त्याच स्थितीत राहावयास भागपाडणे, हे सुसंस्कृत समाजाचे लक्षण नव्हे, अशी टीका अनेक न्यायालयीन निकालपत्रांतून व माध्यमांद्वारे झाल्याने सरकारला त्याची दखल घ्यावी लागली.परिणामी, सरकारने 1955 च्या या कायद्यात दुरुस्ती सुचविणारे विधेयक 2010 मध्ये सादर केले. ते राज्यसभेने ऑगस्ट 2013 मध्ये मंजूर केले. लोकसभेच्या व राष्ट्रपतींच्या मंजुरीनंतर हा कायदा अमलात येईल. वर उल्लेखिल्याप्रमाणे पती, पत्नी आपल्या अपयशी संसाराची कारणे दर्शवून घटस्फोटाची मागणी करू शकते. प्रतिवादीची संमती त्यासाठी नसली तरी. परंतु, हा अर्ज करण्यापूर्वी किमान सतत तीन वर्षांच्या कालावधीमध्ये ती दोघे विभक्त राहत होती, एवढी एकच अट सिद्ध होणे अपरिहार्य आहे. परंतु, पतीची घटस्फोटासाठी मागणी व पत्नीची मागणी, याबाबतीत हा प्रस्तावित कायदा पत्नीच्या बाजूने भेदभाव करतो. घटस्फोटामुळे आपल्यावर आर्थिक संकट कोसळेल, मुलांचे पालन, मुलांची प्रगती, यात अडथळे निर्माण होतील, अशी कारणे दर्शवून घटस्फोटाच्या मागणीस विरोध करण्याचा पत्नीस अधिकार आहे. दोन्ही बाजूंचे वर्तन, त्यांची आर्थिक व इतर परिस्थिती, त्यांचे व त्यांच्या अपत्यांचे हितसंबंध इत्यादींचा विचार न्यायालयास करावा लागेल. घटस्फोटामुळे पत्नीचीआर्थिक कोंडी होईल किंवा अपत्यांच्या प्रगतीस बाधा येईल, असे न्यायालयाने ठरविल्यास घटस्फोट नामंजूर होईल किंवा वरील बाबीसाठी योग्य तरतूद होईपर्यंत घटस्फोटाचा दावा तहकूब ठेवण्यात येईल.घटस्फोट प्रकरणात पत्नीला व अपत्यांना भरपाई मागण्याचा हक्क राहील. पतीच्या स्वकष्टार्जित स्थावर-जंगम मिळकतीमध्ये पत्नी व मुलांना हिस्सा मिळेल. किती हिस्सा देणे योग्य होईल, हे न्यायालयाने ठरवावयाचे आहे, हेही योग्य वाटत नाही. ते ठरविताना पतीला वारसाहक्काने मिळालेल्या किंवा मिळू शकणार असलेल्या मिळकतीच्या किमतीचाही न्यायालयाने विचार करावयाचा आहे. या भरपाईच्या रकमेचा बोजा पतीच्या मालमत्तेवर राहील. भरपाईविषयक या तरतुदी क्लिष्ट व गोंधळ निर्माण करणाऱ्या आहेत. हा कायदा नसताना एरवीही पतीकडील वडिलोपार्जित मालमत्तेमध्ये मुलांना व पत्नीला कायद्याने समसमान हिस्सा असतो, याचा विचार नवीन कायद्यात झालेला नाही. घटस्फोटानंतर पत्नीस पतीच्या स्वसंपादित मालमत्तेत हिस्सा कायदा देतो. परंतु, पत्नीच्या मालमत्तेत मात्र पतीला काहीच हक्क सांगता येणार नाही, हे खटकते. तसेच, घटस्फोटानंतर वरील लाभ घेऊन एखाद्या स्त्रीने पुनर्विवाह केला व त्याचीही परिणती घटस्फोटात झाली, तर त्या वेळीही तिला हे सर्व लाभ पुन्हा मिळू शकतील. यासंबंधात हा प्रस्तावित कायदा काहीच बोलत नाही.पतीच्या घटस्फोटासंबंधीच्या अर्जास पत्नीस वरील कारणांवरून विरोध करता येतो. परंतु, पत्नीने घटस्फोटासाठी या नवीन कायद्याप्रमाणे अर्ज केल्यास पतीस विरोध करण्याचा अधिकार नाही व विरोध केला, तरी त्याचा काही उपयोग नाही, हा भेदभाव योग्य वाटत नाही. अपत्यांचे हित फक्त पत्नी बघू शकते व पतीला त्यात काही रस नसतो, असे गृहीत धरून कायद्याची रचना झालेली दिसते. प्रत्यक्ष व्यवहारात अपत्यांच्या संगोपनाबाबतीत आईपेक्षा वडील सक्षम आहेत, अशीही काही उदाहरणे दिसून येतात. हा कायदाअद्याप लोकसभेत मंजूर व्हावयाचा आहे. वरील त्रुटींचा विचार कायदा मंजुरीच्या वेळी होईल, अशी आशा करू या.

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Categories: Divorce

Bombay HC:- Neither Spouse can withdraw the Consent given during filing the Mutual Consent Divorce.

January 28, 2014 Leave a comment

Bombay High Court

Bombay High Court

Mr Rajesh S/O Pratap Sainani Hindu
vs

Mrs Bhavna W/O Rajesh Sainani … on 26 August, 2008

Bench: V.C. Daga

IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

WRIT PETITION NO. 3556 OF 2008.

Mr Rajesh s/o Pratap Sainani Hindu,

Indian Inhabitant of Mumbai, Aged 33

years, Occu.business, At present residing at 762, Shantivan, Old Lokhandwala Complex, Andheri, Mumbai

400 053. ..Petitioner.

V/s.

Mrs Bhavna W/o Rajesh Sainani Hindu

Inhabitant of Mumbai Aged 31 years,

Occ.Housewife, At present residing at C/o Narain Das Advani, 4/12, Bhagwan

Singh Coloni, Tulsi Pipe Road, Mahim

Mumbai 400 016. .. Respondent.

Mr Rajendra M. Sorankar, Advocate for the Petitioner.

Mr Shailesh Shah i/b J. J. Saxena, Advocate for the Respondent.

CORAM: V.C.DAGA, J.

DATED: 26.08.2008.

JUDGMENT:

——–

1. Rule, returnable forthwith. Perused the petition. Heard finally by consent of parties.

2. This petition, under Article 227 of the Constitution of India, challenges the order passed by the 7th Family Court, Mumbai in Petition No. A-1301 of 2006 refusing to permit the Petitioner to withdraw his consent, which was given at the time of presenting petition for divorce by mutual consent, under Section 13-B of the Hindu Marriage Act, 1955 (“the Act” for short).

THE FACTUAL MATRIX:

——————

3. The petitioner-husband had filed petition under Section 9 of the Act, for decree of restitution of conjugal rights. During pendency of this petition, the respondent-wife made complaint under Section 498-A of the Indian Penal Code (I.P.C.) with the Oshiwara Police Station, Mumbai, against the petitioner. It was under investigation.

4. The troubled marriage had also given rise to reciprocating demand for return of ornaments given in the marriage.

5. Both parties, having realized that marriage is irretrievably broken and there was no possibility to save their marriage, filed application under Section 13B of the Act for decree of divorce by mutual consent, duly signed by them, on 28.10.2006. ( 3 )

6. The settlement of matrimonial dispute by mutual consent was agreed by both spouses resulting, inter alia, wife withdrawing her criminal complaint filed under Section 498-A of the I.P.C. and waiving all claims towards future maintenance for herself and her minor son and agreed to have custody of minor son Dhruva holding herself solely responsible for welfare of the minor son Dhruva. The petitioner-husband agreed not to claim the custody of the minor son Dhruva at any time in future but retained his right to have access.

7. Both parties exchanged jewelleries, gift articles received by them in marriage and declared that they shall have no claim against each other in that behalf. Parties to the dispute acted upon the terms of compromise. Both parties agreed, confirmed and clarified that subject to the compliance of the terms and conditions, the marriage shall stand dissolve by decree of divorce by mutual consent. Both parties declared absence of collusion between them and sought decree of divorce by mutual consent by moving application under Section 13-B of the Act to the Family Court, Mumbai.

8. The petitioner-husband on 23.5.2006, i.e. after lapse of seven months from the date of presentation of the petition, filed an application for cancellation/withdrawal of his consent for mutual divorce contending that he had agreed for consent terms and divorce by mutual consent under pressure, undue influence, and fear about welfare his son. He filed affidavit in support of his application on 16.11.2007 i.e. after lapse of six months from the date of application seeking to withdraw consent for mutual divorce.

9. The above application was strongly opposed by the respondent-wife on various factual and legal grounds pressing into service the doctrine of estoppel.

10. The pleadings of the parties filed before the learned Family Court give a clear indication that both parties agreed for decree of divorce by mutual consent and to compromise all their disputes and made a joint statement in the petition expressing their willingness for a divorce by mutual consent.

11. The learned 7th Family Court heard both parties and vide its reasoned order dated 17.1.2008 dismissed the application of the Petitioner seeking to withdraw his consent holding that it will cause a serious prejudice and/or injustice to the respondent-wife.

12. Being aggrieved by the aforesaid order dated 17.1.2008 refusing to permit the petitioner to withdraw his consent and thereby declining to dismiss the petition filed under Section 13-B (2) of the Act, he has invoked writ jurisdiction of this Court under Article 227 of the Constitution of India.

SUBMISSIONS:

———–

13. The learned counsel for the Petitioner, repeatedly, reiterated that the Petitioner was made to ( 6 ) sign consent terms under coercion and undue influence without disclosing material facts and particulars including the effects thereof.

14. The learned counsel for the petitioner urged that during the pendency of the petition for divorce by mutual consent, in law, it is open for the respondent to withdraw his consent at any time so long as the decree of divorce has not been passed. He submits that the consent must exist on the date when the petition for decree of divorce by mutual consent was filed and it must continue to exist till the orders are passed by the competent Court, dissolving marriage by consent. Reliance is placed on two Judgments of the Division Bench of this Court, one in Family Court Appeal No. 39 of 2008 decided on 29th April, 2008 between Mr Sanjay Pahariya v. Ms Smruti Pahariya (unreported), (unreported of which para 19 was heavily relied upon, which reads as under:

19. “We are not impressed by this submission. We have already quoted extensively from Sureshta Devi’s case (supra). A reading of this judgment leaves no room for doubt that there should be mutual consent when parties move the court under section 13-B(2). No decree under section 13-B(2) can be passed on initial consent and the court must be satisfied about existence of mutual consent at the time it passes the decree. It is true that ordinarily, a motion can be made by one party to a proceeding. But, section 13-B(2) begins with words ” on the motion of both the parties”. Therefore, motion contemplated therein has to be made by both parties. In fact, in Sureshta Devi’s case (supra), the Supreme Court has laid stress on these words and made the observations quoted above. It is not open for us to differently interpret section 13-B of the said Act.”(Emphasis supplied)

15. The another judgment, relied upon by the petitioner arose out of Civil Reference No. 2 of 2007 decided on June,2008 between Principal Judge, Family Court, Nyaya Mandir Premises, Civil Lines, Nagpur vs. Nil taking view similar to the view taken in Sanjay Pahariya’s case (cited supra).

16. Learned counsel for the petitioner, thus, prayed for setting aside the impugned order and dismissal of the petition or divorce by mutual consent filed under Section 13B of the Act.

17. The learned counsel for the respondent-wife supported the impugned order and pressed into service doctrine of estoppel to contend that the petitioner husband is estopped from withdrawing his consent since the respondent-wife acted to her prejudice accepting the representation made by the petitioner-husband that he is ready for divorce by mutual consent if his terms are accepted. That the move on the part of the petitioner is seriously criticised and branded it to be mala fide and dishonest move and prayer for dismissal of the petition in limini with heavy costs is made.

STATUTORY PROVISION:

——————-

18. At this stage, it is necessary to reproduce the relevant statutory provisions of Section 13B (1) and (2) of the Hindu Marriage Act, which read as under: . Section 13B :

(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 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 made by both the parties made not earlier than six months after the date of 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 mean time, the Court shall, on being satisfied, after hearing the parties and making such enquiry 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 a marriage to be dissolved with effect from the date of decree.

RELEVANT JUDGMENTS:-

——————

19. Before embarking upon the submissions of rival parties, let me turn to the relevant reported judgments so as to examine settled legal position:- (1) In the case of Nachhattar Singh v Harcharan Kaur, A.I.R. 1996 P and H, 201, it was held that : 201

“The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than 18 months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such Inquiries as it thinks fit, that the petition was in fact presented by both the parties to the marriage, that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all other conditions mentioned in sub section (1) of Section 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case, without making any inquiry under sub Section (2) the Trial Court has to dismiss the petition as withdrawn which could not be done merely on the asking of one party.”

(Emphasis supplied)

(2) A Similar view was taken by the Delhi High Court in Smt Chander Kanta vs. Hanskumar and Anr (I) 1998 D.N.C. 509; 509 wherein it was held that:

19. “A petition presented under Section 13B (1) of the Act cannot be withdrawn by one party unilaterally. Of course, if the Court is satisfied that a consent was not a free consent and it was the result of force, fraud or undue influence then it is a different matter because in such a case the Court is empowered specifically to refuse to grant the decree. If one party is allowed to withdraw the consent, even when other grounds, namely that the parties continued to live separately and have not been able to live together, still subsists and reconciliation is not possible then it will frustrate the very purpose of the enactment. Under Section 23(1)(bb), the Court is empowered to grant the decree even in an undefended case if it is satisfied that the averment in the petition are true and the consent for mutual divorce has not been obtained by fraud, force or undue influence. If unilateral withdrawal of consent is permitted the Court will not be able to pass a decree in an undefended case”.

Thus, it is clear that it is settled law that unless it is shown by one party that his/her consent was as a result of force, fraud or undue influence, consent given for grant of divorce by mutual consent in the petition under Section 13-B (1) of the Act cannot be unilaterally withdrawn by the said party, which position of law has also been followed in volume 41 (1990 Delhi Law Times 266) in the case of Rajrani vs. Roop Kumar.

(Emphasis supplied)

20. In A.I.R. 1997 SC 1266 in Ashok Hura v. Rupa Bipin Zaver, the Hon’ble Supreme Court, while dealing with similar question of withdrawal of consent unilaterally by one party concluded that the marriage between the parties has been irretrievably broken and that there was no chance of their coming together or living together, and went on to observe, as under:- “We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically and there is no chance at all of the same being revived and continuation of such a relationship is only for namesake and that no love is lost between theparties, who have been fighting like “Kilkenny cats” and there is long lapse of years since the filing of the  petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13-B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards.

Irretrievable breakdown of marriage is now considered, in the laws of number of countries, good ground of dissolving the marriage by granting a decree of divorce. Proof of such breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legalities acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage. The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and not an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which may regulate their relationship in the changed circumstances…”

(Emphasis supplied)

21. In Rachna Jain vs. vs Niraj Jain II (2006) DMC 410 the Delhi High Court had an opportunity to deal with the case involving more or less similar facts wherein the Court refused to permit withdrawal of the consent holding such move on the part of the respondent-husband to be mala fide, baseless and  unjust since the terms of settlement were acted upon by both parties.

22. In Ashok Hura’s case (supra) the Hon’ble Supreme Court dealt with its earlier judgment in Sureshta Devi’s case (supra) and observed as under: “It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act, However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact situation herein. The decision in Sureshta Devi’s case AIR 1992 SC 1904, (supra) may require reconsideration in an appropriate case. We leave it there.”

23. The impugned order can be justified on the solitary principle of law laid down by the Apex Court in Ashok Hura’s case (cited supra).

24. Now, turning to the another facet of the submission based on the touchstone of the doctrine of estoppel, it is necessary to examine the reasons recorded by the Family Court in support of its order dated 17.1.2008. The relevant extracts of which are reproduced herein below.

20. “It is important to note that besides bare words of the petitioner, he has not made out any ground of force or coercion used by the respondent on him. Much emphasis is given on the point that the respondent has filed criminal complaint against the petitioner and by taking undue advantage of filing the said complaint, she has pressurised the petitioner. Second, she has used her child against him for obtaining his consent.

21. If we go through the consent terms it clearly reveals that the respondent is withdrawing her right of alimony, secondly, she has agreed to give access of the child, thirdly, she has agreed to withdraw the complaint filed against the petitioner and that the only compliance was remained that too, of passing decree of dissolution of marriage.

22. If we go through the contents of the application exh.17, besides the words that the respondent had used force, influence for signing the consent terms, there is nothing on record to show that the respondent has gained any advantage from the petitioner by compelling him to sign the consent terms. Apart from that, if at all, the respondent would have pressurized the petitioner for signing the consent terms, he could have appeared before the Court even before six months or approach police authorities but he remained silent for about seven months. He has not appeared before the Court even immediately after completion of six months. It clearly reveals that when the respondent has presented the copy of application for withdrawal of her complaint submitted by her to the police, on the very day, when the matter was for appearance, he remained absent on that date and appeared on the next date when the matter was kept after one month. The conduct of the part of the petitioner is such that he has obtained disadvantage by way of agreement by which the respondent has withdrawn the complaint, she has started giving access of the child to the petitioner. In these circumstances, I am of the opinion that the petitioner has failed to establish his consent for converting the petition into the petition for divorce by mutual consent, has been obtained by respondent by playing fraud or coercion on him, as alleged in application Exh.17.

23. Moreover, as I have submitted earlier, the parties have acted upon the consent terms and therefore, it is not desirable at this stage when only the order of dissolution of marriage is remained to be passed. At such stage, if the petitioner is allowed to withdraw his consent, it will cause prejudice or injustice to the respondent. Therefore, the application, deserves to be rejected.” (Emphasis supplied)

25. The finding recorded by the Family Court is that the Respondent-wife acted upon the representation made by the respondent-husband to her prejudice and the petitioner-husband has availed all benefits and enjoyed fruits of the terms of settlement and compromise.

Let me examine as to whether or not the findings are correct.

26. The dissection of the impugned order and material available depict picture, as under:- (i) The respondent-wife, under the garb of said compromise, was made to withdraw her criminal complaint filed under Section 498-A of the I.P.C.

(ii) The respondent-wife was made to return the ornaments which were given to her in marriage by husband’s family.

(iii) The respondent-wife was made to waive her right of present and future maintenance including that of minor son.

(iv) The respondent-wife was saddled with the liability of son’s future education and welfare. In other words, petitioner got himself relieved of the obligations of father towards his minor son; and

(v) The respondent-wife was made to agree to a limited custody of minor son and access to the petitioner-husband for which wife was not agreeable.

27. It is, thus, clear that factually, the respondent-wife has acted upon the terms of compromise to her prejudice accepting the representation made by her husband-petitioner that he was ready for divorce  by mutual consent.

28. Now, let me examine the legal effect of representation made by the husband and accepting terms thereof by the wife to her prejudice based on decided cases.

29. The Apex Court in the case of B.L. Sreedhar vs K.M. Munireddy A.I.R. 2003 S C 578 held as under: “The essential factors giving rise to estoppel are, I think –

(a) A representation or conduct amounting to representation intended to induce a course of conduct on the part of the person to whom the representation was made.

(b) An act or omission resulting from representation whether actual or by conduct, by the person to whom the representation was made.

(c) Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted.”

30. In the case of Maddanappa (deceased) after him by his legal representatives vs. vs Chandramma and Anr A.I.R. 1965 S C 1812 the Supreme Court relying upon the judgment of Privy Council in the case of Saratchunder Dey vs. Gopal Chunder Laha 19 Ind App 203 (PC) explained the ingredients of the doctrine of estoppel and went on to hold that a person who sets up an estoppel against the other must show that his position was altered by reason of the representation or conduct of the latter and unless he does that, even the general principle of estoppel cannot be invoked by him.

31. The general principle of estoppel is stated thus by the Lord Chancellor in Cairncross vs. vs Lorimer (1860) 3 H.L.C. 829:

“The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations that if a man either by words or conduct has intimated that he consents to an act which is to be done and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he has so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct…I am of the opinion that generally speaking, if a party having an interest to prevent an act to be done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licence.”

32. Having examined the aforesaid legal position, it is clear that the estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice.

33. With the above understanding of law, if one turns to the facts of the case in hand, at the cost of repetition, I must observe that the Petitioner, by making representation that he was agreeable for divorce by mutual consent provided – respondent-wife withdraws her criminal complaint, returns his ornaments given to her in the marriage and takes care and custody of the minor child with limited access to him. The said representation made by the husband was accepted and acted upon by the respondent- wife to her prejudice. She withdrew criminal complaint filed against the husband and his family members. She returned ornaments received by her in the marriage. She agreed to have a custody of the minor son and on the top of it waived present and future right to claim maintenance for herself as well as for minor son. Thus, it is clear like a day light that the respondent- wife acted to her prejudice by accepting terms of compromise favourable to the petitioner-husband. The husband is, thus, estopped from withdrawing his consent.

34. The Family Court cannot be helpless spectator and duplicity of the petitioner-husband to induce the hapless wife, the respondent to waive maintenance claim for not only herself and her son, also compelled her to withdraw the criminal complaint in the hope of starting her life afresh. The husband by his conduct has caused the wife huge disadvantage. No spouse can unilaterally, wilfully be allowed to withdraw consent even on the grounds; such as fraud, undue force, representation unless grounds are proved satisfactorily. In the present case, if the withdrawal of consent by the petitioner-husband is upheld, it will cause anamoulous situation and serious prejudice to the respondent-wife, who is law abiding person. She will be left high and dry without recourse to any remedy and saddled with dead marriage. The respondent-husband has resorted to fraud and misrepresentation which cannot be permitted by the Courts of Law and equity.

35. The Family Court has rightly taken into account the wrong sought to be done by the husband and his attempt to cheat his wife depriving her an opportunity to work out and regulate the life of herself and her son in a fresh air. A pedantic interpretation of law might result in a situation resulting in gross miscarriage of justice in denying a woman with her abandoned son an opportunity to start their life afresh as stated.

36. Having said so, I am also prevented by the parameters of interference by the High Court in the petition filed under Article 227 of the Constitution of India to interfere with the impugned order in view of the Law holding field in this behalf enumerated herein below.

37. The Apex Court in the case of T.G. Telang vs. R.S. Bhinde A.I.R. 1977 S C 1222 the Apex Court in para 3 held that:

” As would be apparent from the above narrated, the instant case does not involve any substantial question of law of general or public importance. Although counsel for the appellants has strenuously assailed the correctness of the finding of the Revenue Tribunal and of the High Court, we are unable to accede to his contention. We have not, despite careful consideration of the judgments and objections submitted to us, been able to discern any legal infirmity or error either in the decision of the Revenue Tribunal or of the High Court. It is well settled rule of practice of this Court not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the orders passed results in manifesting justice, that the Court can justifiably interfere under Article 227 of the Constitution.”

38. The Apex Court in the case of Waryam Singh v. Amarnath A.I.R. 1954 S C 215 considered the scope of  Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd v. Sukumar Mukherjee A.I.R. 1951 Cal 193 (SB) where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.

39. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta (1975) 1 SCC 858 the Apex Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, “as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceeding.”

40. In Nagendra Nath Bora v. Commr. of Hills Division and Appeals A.I.R. 1958 S C 398 the Supreme Court observed as under: “It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the powers under Article 226 the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.”

41. In the above view of the matter, it is evident that withdrawal of the consent by the petitioner-husband is tainted with mala fide, baseless and unjust consideration. The judgments of the Division Benches of this Court referred in paras 14 and 15 supra are not applicable to the facts of this case. The view taken by the learned Family Court is a reasonable and possible view. No case is made out to interfere with the order under challenge.

42. In the result, Rule is discharged. The petition is dismissed with costs quantified in the sum of Rs. 25,000/- to be paid by the petitioner-husband to the respondent-wife.

(V.C.DAGA, J.)

 

Bombay HC: One party cannot withdraw the consent for Mutual Consent Divorce.

October 9, 2013 Leave a comment
The Bombay high court (HC) has held that neither litigating spouse can backtrack on a divorce agreement made by mutual consent if the other party has abided by the terms.

A division bench of justices AM Khanwilkar and MR Bhatkar made the observation while hearing an appeal filed by a Pune-based couple. The two, married since 1993, decided to live separately in 2006. Initially, it was the wife who petitioned for divorce on the grounds of cruelty. She also filed other complaints against her husband under Section 498-A (harassment) of the IPC.

On October 6, 2008, however, the warring couple agreed on a divorce by mutual consent. The wife withdrew the criminal complaints she had filed against her husband, relinquished her right for alimony, and also agreed to transfer the property in her name to her husband. While the custody of their two children was given to her, she agreed to let him have access to them on weekends and during school vacations.

The husband backtracked at a later stage, refusing to seek a divorce by mutual consent. He said his wife had faulted on granting him access to their children. However, the wife informed the court that he failed to meet the children as he was in prison. Moreover, the children, too, did not want to meet him. Holding the withdrawal of consent terms by the husband as incorrect, the family court in Pune granted the divorce decree on March 31, 2009.

The HC bench agreed with the family court’s decision. “The wife has performed her obligations. She waived the claim for maintenance and streedhan. She also withdrew the civil and criminal actions initiated by her against the appellant [the husband]. Even for this reason, the appellant cannot be permitted to withdraw his consent,” the court said.

However, the bench reserved the remedy of the parties to resort to appropriate proceedings for effectuating the terms agreed upon.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.61 OF 2010

Mr.Prakash Alumal Kalandari,

Age: 42 years, Occupation: Business,

Indian Hindu, at present residing at

1/8 Five Star, Apartments 262,

Bund Garden Road,

PUNE -411 001. …Appellant

Versus

Mrs.Jahnavi Prakash Kalandari,

Age: 31 years, Occupation: Household,

Indian, Hindu, having residential address

at C-1, 14, “Ganga Heights”,

Mundhwa Road, Pinglewasti,

PUNE 411 036, at present residing

at Flat No.2, Janardhan Apartments,

Off Joggers Park, Kalyani Nagar,

PUNE 411 006. …Respondent ……

Ms. S.P. Nanavati for Appellant.

Mr. Anil Menon with Mr. S.B.Shetty for Respondent.

……

CORAM:- A.M.KHANWILKAR AND

MRS.MRIDULA BHATKAR, JJ.

JUDGMENT RESERVED ON :- MARCH 18, 2011.

JUDGMENT PRONOUNCED ON :- MAY 6, 2011.

JUDGMENT (Per A.M.Khanwilkar, J.) :

1. This appeal takes exception to the Judgment and Decree passed by the Family Court No.3, Pune dated 31st March, 2009 in Petition No.A-877/2007. The respondent/wife filed Petition for a decree of divorce on the ground of cruelty. The said Petition was contested by the appellant/husband by filing written statement and counter claim. The appellant also prayed for custody of children.

2. The marriage between the appellant (husband) and respondent (wife) was solemnized on 12th August, 1993 at Pune as per the Hindu Vedic rites. After their marriage, they lived and cohabited together initially at Moscow, then at France and lastly at Pune. Two children are born out of the said wedlock namely; daughter Lavanya born on 22nd June, 1995 and son Rahul born on 11th January, 1999. The children are in the care and custody of the respondent mother. The parties started living separately since June, 2006. Since then, there has been no cohabitation between them.

3. During the pendency of the abovesaid Petition, the parties decided to take divorce by mutual consent. Accordingly, Consent Terms were executed and signed by both of them on 6th October, 2008, which were placed on record before the Family Court being Exhibit 71. The parties thereafter jointly filed application at Exhibit 72 to convert the Petition for divorce into joint Petition for divorce by mutual consent. As per the Consent Terms, the appellant had agreed that the custody of both the children would remain with the respondent wife. The respondent wife on the other hand, agreed to give access of both the children to the appellant during the weekend on every Sunday at the designated place and time and during the Diwali and Christmas vacations every day at the same venue and same time. Insofar as summer vacation, temporary custody of both the children was to be given to the appellant husband for the first half of the vacation when he could take the children away from Pune for vacation under intimation to the respondent wife. The parties also agreed that they would jointly take decision in respect of education and other activities of the children. The appellant agreed to pay maintenance of Rs.5,000/- per month for each child with increase at the rate of 15% every two years. The respondent wife waived her claim of maintenance and alimony and her streedhan. The respondent wife also agreed to cooperate with the appellant husband for the transfer of shares, properties-movable and immovable of the respondent in Company KAPEXL Healthcare Private Limited. Besides, both parties agreed to withdraw all the criminal and civil proceedings filed against each other.

4. After filing of Consent Terms recording the above arrangement, the hearing was deferred for some time. The Advocate for the appellant thereafter withdrew his Vakalatnama and on 16th February, 2009, the appellant filed application Exhibit 80 to withdraw his consent given on the application Exhibit 71 to grant divorce by mutual consent. The sole reason mentioned in this application is that the respondent wife failed to comply with her obligation to provide access of the children to the appellant husband. He has asserted that he was therefore withdrawing his consent, keeping in mind the paramount interest and welfare of the children. The said application Exhibit 80 was resisted by the respondent wife by filing reply Exhibit 81. According to the respondent, she never refused to grant access of children to the appellant. Whereas, the appellant was arrested in connection with various criminal matters and could not avail of access during the relevant period, as he was in jail. In substance, she refuted the allegations in application Exhibit 80 that she failed to comply with any of the terms of Consent Terms executed between the parties. She has also asserted that the children were not keen on meeting the appellant and refused to accompany the appellant, which fact was known to the appellant. She also asserted that the appellant was not paying maintenance amount regularly and was in arrears. She also brought on record that after execution of the Consent Terms, she facilitated disposal of criminal cases filed against the appellant husband being case No.560/2007 for offence under Section 498-A of the Indian Penal Code and case No.66/2008 for offence of theft. Besides, as per the Consent Terms, she also informed the Police Station of Hadapsar Police Station to withdraw all pending complaints against the appellant.

5. Considering the stand taken by the rival parties, the Family Court framed points for determination, amongst others, whether the application filed by the appellant Exhibit 80 to withdraw the consent recorded in the Consent Terms should be allowed and whether decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as `the Act’), should be passed.

6. Dealing with the first point, the Family Court took the view that the appellant cannot be allowed to withdraw his consent in the fact situation of the present case. The learned Judge held that the only ground pressed into service by the appellant justifying withdrawal of consent for passing decree of divorce by mutual consent, was untenable and devoid of merits. The learned Judge relying on the case law pressed into service by the parties took the view that the appellant cannot be allowed to withdraw his consent and instead, the Consent Terms executed between the parties ought to be taken on record and decree of divorce by mutual consent on the basis of the said Consent Terms was inevitable.

7. In the present appeal, the view so taken by the Family Court has been assailed. According to the appellant, since the Petition was one under Section 13B of the Act, the same could be taken forward only if both the parties continued to support the same till the date of the decree. Whereas, even if one party to the said application were to resile from or withdraw his/her consent, the Court cannot get jurisdiction to pass a decree of divorce by mutual consent. To buttress this argument, reliance is placed on the decision of the Apex Court in Smt.Sureshta Devi vs.Om Prakash reported in I (1991) DMC 313. Reliance is also placed on another decision in the case of Rupali alias Chetna vs. Sunil Data reported in AIR 2006 Punjab and Haryana 93. In that view of the matter, contends learned Counsel, the impugned decree of divorce as passed cannot be sustained in law.

8. On the other hand, Counsel for the respondent would contend that there is no infirmity either in the approach or the conclusion reached by the Family Court. The learned Counsel contends that considering the factual matrix of this case, it is more than clear that the respondent acted upon the Consent Terms executed between the parties to her prejudice, for which reason, the appellant cannot be permitted to resile from the commitment made in the Consent Terms and more particularly, because he has taken benefit of the Consent Terms. It is contended that the decree of divorce by mutual consent as passed by the Family Court in the fact situation of the present case, was inevitable.

9. To buttress this submission, learned Counsel for the respondent has placed reliance on the decisions in the case of Sudhakar Vinayak Joshi v. Sulabha Sudhakar Joshi reported in (1985) 87 Bom.L.R. 496, Rajesh Pratap Sainani v. Mrs.Bhavna Rajesh Sainani 2008 (6) Mh.L.J. 853 and Apurba Mohan Ghosh v. Manashi Ghosh AIR 1989 Cal.115.

10. After having given our anxious consideration to the arguments advanced by the respective Counsel and going through the record of the case and more so, the legal position enunciated in the above said decisions, it may appear that ordinarily in a Petition filed under Section 13B of the Act, the consent and willingness of the parties to invite decree of divorce should not only be present when the Petition is filed but should also continue till the Court passes a decree on due satisfaction that the consent was voluntary and not obtained by force, fraud or undue influence. In other words, none of the party to a Petition for divorce by mutual consent under Section 13B of the Act of 1955, should withdraw the consent before passing of the decree of divorce. Further, it is open to the party to a Petition for divorce by mutual consent to unilaterally withdraw his/her consent within the specified period and including before the decree of divorce on the Petition filed under Section 13B of the Act is passed. It is not as if the consent given for filing the joint Petition for divorce by mutual consent is irrevocable. This legal position is reinforced from the decision of the Apex Court in the case of Sureshta Devi (supra). In paragraphs 13 to 15 of the said reported decision, the Apex Court expounded as follows:-

“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.”

11. The statement of law in Sureshta Devi (supra) is in the backdrop of the controversy before the Apex Court, wherein, the appellant-wife was signatory to the joint Petition for divorce by mutual consent filed in the Family Court on 8th January, 1985. Her statement was recorded by the Court on 9th January, 1985. However, on 15th January, 1985, she filed application in the Court alleging that her statement was obtained under pressure and threat of the husband. She was not allowed to see or meet her relations and to consult them before filing of the divorce petition. Nor her relations were permitted to accompany her to Court. Hence, she asserted that she does not want to be party to the petition and prayed that the same be dismissed.

12. Applying the abovesaid exposition, coupled with the fact that the appellant withdrew his consent vide Exhibit 80, it may appear as if the Family Court exceeded its jurisdiction in passing the decree of divorce by mutual consent. However, what is significant to bear in mind, is that, in the present case, the parties had not in the first instance resorted to Petition under Section 13B of the Act. Whereas, the respondent had filed Petition for a decree of divorce on the ground of cruelty against the appellant/husband on 7th September, 2007. Even the appellant/husband in the written statement and counter claim filed on 9th April, 2008, prayed for dissolution of the marriage. The parties during the pendency of the said proceedings decided to compromise the matter. Accordingly, they entered into Consent Terms (Exhibit 71) which were duly executed by the parties on 6th October, 2008. Amongst the several terms agreed upon between the parties to bring quietus to the entire dispute, they chose to convert the pending Petition for divorce into a joint Petition for divorce by mutual consent and withdraw all allegations against each other. Not only that, the parties immediately acted upon the said Consent Terms. The respondent, as per the terms of Consent Terms, offered access of both the children to the appellant. It is a different matter that the access did not fructify for reasons stated by the respondent. That plea of the respondent has been accepted by the Family Court. On this finding, the sole ground stated by the appellant as justification to withdraw the consent given for decree of divorce by mutual consent becomes unavailable. In any case, the said justification, even if it were to be accepted, would, at best, be a case bordering on non- compliance of the terms and conditions of the Consent Terms.

13. Notably, in the application filed by the appellant for withdrawing his consent (Exhibit-80), no material facts have been pleaded to even remotely suggest that he had signed the Consent Terms (Exhibit-71) due to force, fraud or undue influence. In other words, the parties having acted upon the Consent Terms in part and more particularly, the respondent-wife having acted to her detriment, including having withdrawn the criminal cases filed against the appellant, the appellant cannot be allowed to extricate himself from his commitment. In such a situation, in absence of assertion that the consent was obtained by force, fraud or undue influence, by virtue of Section 23(1)(bb) read with Section 23(1)(e) of the Act of 1955, the Court would assume jurisdiction to pass a decree under Section 13B on being satisfied that a marriage was solemnized between the parties and that the averments in the petition are true. As regards the grievance of the appellant regarding non-observance of the terms and conditions of the Consent Terms, the Court can always grant liberty to the parties to pursue the remedy in that regard which will have to be decided on its own merits.

14. Be that as it may, what is significant to note is that under the Consent Terms (Exhibit-71), the respondent had also voluntarily waived her claim of maintenance and alimony and her streedhan. She also agreed to cooperate with the appellant to transfer the shares, properties – movable and immovable to the appellant. Further, she agreed to withdraw all the criminal and civil proceedings filed by her against the appellant. She acted upon the said terms as were agreed between the parties vide Consent Terms dated 6th October, 2008 at Exhibit 71, before the appellant filed the application Exhibit 80 on 16th February, 2009 to withdraw his consent. Somewhat similar situation was considered by the learned Single Judge of this Court in a recent decision in the case of Rajesh Pratap Sainani (supra). Even in that case, the petitioner before the High Court had challenged the order passed by the Family Court refusing to permit the petitioner to withdraw his consent and to dismiss the Petition under section 13B (2). In that case also, the original proceeding filed between the parties was one under Section 9 for decree of restitution of conjugal rights and not under Section 13B of the Act of 1955. When the said Petition was pending, criminal complaint was filed by the wife against the husband for offence under Section 498-A of the Indian Penal Code. Thereafter, the parties realized that their marriage was irreconcilable and there was no possibility to save the same. Accordingly, they filed application under Section 13B of the Act for a decree of divorce by mutual consent, which was duly signed by both the parties. While the said application was pending, the husband moved the Family Court to permit him to withdraw his consent and to dismiss the Petition under Section 13B of the Act. The Court found that the wife had already acted upon the Consent Terms. In that, before the husband moved application for withdrawal of consent, she withdrew the criminal complaint filed against the husband as is the case on hand. She also returned the ornaments which were given to her in marriage by husband’s family. She waived her right to present and future maintenance including that of minor son. The wife was made to agree to a limited custody of minor son and access to the husband. The wife was also saddled with the liability of son’s future education and welfare. The Family Court, therefore, rejected the husband’s application for allowing him to withdraw the consent to decree of divorce by mutual consent, as the wife had already acted upon the terms of compromise to her prejudice, on the basis of the representation made by her husband. The Court invoked the principle of doctrine of Estoppel to uphold the order of the Family Court disallowing the prayer of the husband for withdrawing his consent. The Court observed that the husband cannot be permitted to take advantage of his own wrong. Further, the Family Court cannot be a helpless spectator inspite of the duplicity of the husband to induce the hapless wife to waive her maintenance claim and to withdraw the criminal complaints with the hope of starting her life afresh. The Court went on to observe that if the husband was allowed to withdraw his consent, it would be nothing short of husband resorting to fraud and misrepresentation, which cannot be permitted by the Courts of Law and Equity. The Court further observed that in such situations, no spouse can be allowed to withdraw consent unilaterally, unless he/she was able to substantiate a just cause to the satisfaction of the Court.

15. In another reported decision of this Court in the case of Sudhakar Joshi (supra), on which reliance is placed by the respondent, the husband had filed Petition for divorce on the ground of desertion, cruelty and adultery. During the pendency of the said Petition, parties filed Petition for divorce by consent. However, after filing of such Petition, one party continued to remain absent. The Trial Court opined that if one of the spouse remains absent, he had no jurisdiction to pass the decree for divorce in favour of the spouse who attends the Court. The learned Single Judge of this Court overturned the conclusion of the Trial Court by observing that a decree of divorce could be granted on the ground of desertion as Advocates for parties agreed to pass such a decree. The Court then referred to the provisions of Order XXIII Rule 3 of the Code of Civil Procedure. It observed that before advent of Section 13B on the Statute Book, it was not possible for the Trial Court to resort to Order XXIII Rule 3 of the Code of Civil Procedure. It went on to hold that with the legislative change, the Court can now decree even a Petition for divorce filed under Section 13 of the Act, by consent of the parties, if the Court were to be satisfied that such a decree was not collusive one. It further observed that the provisions of Section 13B and Section 23(1)(c) of the Act were mutually inconsistent. We do not agree with such a wide statement of law. For, the petition under section 13B stands on a completely different pedestal. The procedure to try the said petition is well defined in Section 13B read with Sections 23(1) (bb) and Section 23(1)(e) of the Act of 1955. These provisions are self contained Code. Whereas, while trying the petitions for divorce on grounds other than Section 13B, the mandate of the relevant provisions such as Section 13 read with Section 23 of the Act (except Section 23(1) (bb)) would apply. In the latter cases for a decree of divorce, the Court is obliged to record its satisfaction on the basis of evidence before it in respect of the ground alleged by the petitioner or respondent, as the case may be. The Apex Court in the case of Balwinder Kaur vs. Hardeep Singh (1997) 11 SCC 701 held that Section 23 of the Act of 1955 mandates the Court before granting decree for divorce, “whether defended or not”, to satisfy itself in respect of several factors mentioned in that Section and including duty in respect of conciliation efforts. Suffice it to hold that petitions on grounds other than petition for a decree of divorce by mutual consent under Section 13B of the Act, cannot be disposed of merely on the basis of compromise by invoking Order XXIII Rule 3 of the CPC. We are of the view that insertion of Section 13B and Section 23(1)(bb) by Marriage Laws (Amendment) Act 1976 (68 of 1976), which came into force with effect from 27th May, 1976, was not to dilute the mandate under other provisions casting duty on the Court to be satisfied about the existence of the stated ground as condition precedent, before passing a decree in terms of the reliefs claimed in the Petition. We would, however, agree with the exposition of the Calcutta High Court in the case of Apurba Ghosh (supra) that, decree of divorce in a Petition under Section 13 of the Act cannot be passed solely on the basis of compromise by resorting to provisions of Order XXIII Rule 3. Whereas, even the Court must be satisfied that a ground for divorce in the Statute can be traced from the record.

16. As aforesaid, if the Petition is filed “simplicitor under Section 13B of the Act” for divorce by mutual consent, the Court must satisfy itself that the consent given by the parties continues till the date of granting decree of divorce. Even if one party unilaterally withdraws his/her consent, the Court does not get jurisdiction to grant decree of divorce by mutual consent in view of the mandate of Section 13B of the Act. However, the situation would be different if the parties in the first instance resort to Petition for relief under Section 9 or 13 of the Act and during the pendency of such Petition, they decide to invite decree for divorce by mutual consent. On the basis of agreed arrangement, if the parties were to execute Consent Terms and then file a formal Petition/Application to convert the pending Petition to be treated as having been filed under Section 13B of the Act to grant decree of divorce by mutual consent, then, in the latter proceedings, before the decree is passed, one party cannot be allowed to unilaterally withdraw the consent if the other party has already acted upon the Consent Terms either wholly or in part to his/her detriment. In other words, the Court will have to be satisfied that: (i) there is sufficient, good and just cause for allowing the party to withdraw his consent, lest, it results in permitting the party to approbate and reprobate; (ii) that the other party would not suffer prejudice which is irreversible, due to withdrawal of the consent. If this twin requirement is not satisfied, the Court should be loath to entertain the prayer to allow the party to unilaterally withdraw his/her consent.

17. Reverting to the facts of the present case, we are in agreement with the finding recorded by the Trial Court that the sole reason or justification given by the appellant husband for withdrawing his consent already given (that he was denied access of the children), is not substantiated by him. Whereas, the material on record would indicate that the real reason was the inability of the appellant husband to meet the children as he was in jail in connection with criminal cases and also because the children were unwilling to meet the appellant. Thus, it was not a case of respondent coming in the way of providing access of the children to the appellant. In other words, there was no sufficient or just cause established by the appellant for permitting him to withdraw his consent. Further, it has come on record that the respondent acted upon the Consent Terms dated 6th October, 2008 and performed her obligations and committed herself to waive the claim of maintenance for herself and also streedhan including to withdraw civil and criminal actions initiated by her against the appellant. Even for this reason, the appellant cannot be permitted to withdraw his consent as it would result in bestowing premium on the appellant inspite of his unjust and inequitable request to allow him to of unilaterally withdraw the consent. We are in agreement with the said conclusion reached by the Family Court.

18. In this view of the matter, the rejection of the application preferred by the appellant for withdrawal of his consent was inevitable; and at the same time, the Court was duty bound to dissolve the marriage between the parties and pass a decree of divorce by mutual consent on the basis of the Consent Terms already filed on record accompanied by a formal application/Petition filed by the parties to grant such decree. The Family Court has also adverted to Rule 31 of the Family Courts (Maharashtra) Rules, 1987. The same reads thus:
“31. Settlement before Counsellor : – When the parties arrive at a settlement before the Counsellor relating to the dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and countersigned by the Counsellor. The Court shall pronounce a decree or order in terms thereof unless the Court considers the terms of the settlement unconscionable or unlawful or contrary to public policy.” 

19. Notably, these Rules have been framed by the High Court in exercise of power bestowed in Section 21 of the Family Courts Act, 1984. In terms of Section 21(2)(c) of the Act, Rules can be framed to deal with the subject of efforts to be made by the Family Court and the procedure to be followed for assisting and persuading parties to arrive at a settlement. Rule 31, inter-alia, deals with that subject. In terms of this Rule, therefore, the Court may pronounce a decree on the basis of the consent terms reduced into writing and signed by the parties, unless it were to be of the opinion that the terms of the settlement arrived at between the parties are unconscionable or unlawful or contrary to the public policy. None of these issues have been raised by the appellant. We, however, make it clear that Rule 31 will be of no avail to pass a decree on the basis of petition such as for relief under Section 13 of the Act of 1955, as those petitions cannot be decreed merely because it is not defended or that parties have consented for passing decree on the ground pleaded therein. We have already alluded to this aspect hitherto.

20. For the view that we have taken, we find no infirmity in the order passed by the Family Court in rejecting the application (Exhibit 80) preferred by the appellant and instead, having decreed the Petition by dissolving the marriage solemnized between the appellant and the respondent and granting decree of divorce by mutual consent on the basis of the terms specified in Consent Terms (Exhibit 71).

21. We, reserve the remedy of the parties to resort to appropriate proceedings for effectuating the terms agreed upon including regarding access of children as provided in the Consent Terms (Exhibit 71), which proceedings will have to be decided on its own merits in accordance with law. All questions in that behalf are left open.

22. Hence, this Appeal ought to fail. The Appeal is, therefore, dismissed with costs quantified at Rs.20,000/- (Rupees Twenty Thousand) to be paid to the respondent within four weeks from today.

(MRS.MRIDULA BHATKAR, J.) (A.M.KHANWILKAR, J.)

Categories: Divorce Tags:

Kerala HC:-‘Infidelity over phone ground for divorce’

September 5, 2013 1 comment

Divorce can be granted on the ground of cruelty if a spouse maintains illicit relationship over phone, the Kerala high court has held.

The ruling by a division bench comprising Justices Antony Dominic and P D Rajan came while considering an appeal against Thalassery family court’s order denying divorce to a man on the ground of cruelty despite proving on the basis of his wife’s telephone records that she maintained an illicit relationship.

Phone records had shown that the wife used to call her childhood ‘friend’ for long hours during day and night while the husband was working abroad.

Pls find the detail Judgment below-

 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN

WEDNESDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935

Mat.Appeal.No. 324 of 2013 (C)
——————————

AGAINST THE ORDER/JUDGMENT IN OP 256/2011 of FAMILY COURT, THALASSERY
DATED 28-02-2013

APPELLANT(S)/PETITIONER:
———————————————-

P.V.PRAKASH, AGED 41 YEARS
S/O BALAN, KARIPPADY VATHIKKAL HOUSE, TEMPLE GATE
THIRUVANGAD.P.O, THALASSERY,KANNUR DISTRICT.

BY ADVS.SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.JOPHY POTHEN KANDANKARY

RESPONDENT(S)/RESPONDENTS:
—————————————————-

1. R.BINDU,, AGED 37 YEARS
D/O.RAGHAVAN, VINOD VILLA, KUNDILTHADAM
PAYANGADI.P.O, KANNUR DISTRICT-670303.

2. SUNEESH.P.K., AGED 40 YEARS
RESIDING AT KARIKKINKULAM, PAPPINISSERY EAST.P.O
KANNUR DISTRICT-670561.

R1 BY ADV. SRI.SUNIL NAIR PALAKKAT
R1 BY ADV. SRI.K.N.ABHILASH
R1 BY ADV. SMT.R.LEELA
R1 BY ADV. SMT.N.K.SHEEBA
R1 BY ADV. SRI.K.K.ANIL KUMAR

THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
25.07.2013 ALONG WITH MA NO.385/13 THE COURT ON 16-08-2013 DELIVERED THE
FOLLOWING:

ANTONY DOMINIC & P.D.RAJAN, JJ.
========================
Mat. Appeal Nos. 324 & 385 OF 2013
=========================

Dated this the 16th day of August, 2013

J U D G M E N T
Antony Dominic, J.

Mat.Appeal No.324/13 and Mat.Appeal No.385/2013 are filed by the petitioner and respondent respectively in OP No.256/11 on the file of the Family Court, Thalasserry. For convenience, the appellant in Mat.Appeal No.324/13 is referred to as the husband and the appellant in Mat.Appeal No.385/13 is referred to as the wife.

2. OP No.256/11 was filed by the husband seeking a decree of divorce urging grounds under Section 13(1)(i) and (ia) of the Hindu Marriage Act. From the evidence, it is seen that the husband and wife are the children of brothers and were in love for a period of 10 years. Thereafter, much to the dislike of the members of their family, their marriage was solemnized on 29/1/2001 at Sree Krishna Temple, Guruvayoor. It is also stated that after considerable treatment, the wife gave birth to twins, two female children, who are aged about 6 years now. The relationship between the couple became strained during 2008  February, and since then, the wife and the kids are residing in her paternal house.

3. The OP was filed alleging that the wife was living in adultery with the 2nd respondent and was guilty of cruelty towards the husband. Before the Family Court, on behalf of the husband, himself and another witness were examined as PWs 1 and 2 and the wife and her father were examined as RWs 1 and 2. Exts.A1 to A9 were marked on behalf of the husband and Exts.X1 and X1 (a) are the court exhibits. By its judgment dated 28th of February, 2013, the Family Court declined to accept the case of adultery urged by the husband but however held that the evidence proved that the attitude of the wife towards the husband was cruel in nature. Thereafter, instead of granting a decree of divorce, Family Court ordered judicial separation. It is challenging this judgment of the Family Court that the husband filed MA No.324/13 and the wife has filed MA No.385/13.

4. Before the Family Court, the 2nd respondent, the alleged adulterer remained ex parte and though notice issued in MA No.324/13 was served on him, the 2nd respondent did not choose to enter appearance before this Court also.

5. Learned counsel for the husband contended that the Family Court having accepted that the attitude of the wife was cruel to him, he was entitled to have been granted a decree of divorce instead of judicial separation. On the other hand, learned counsel for the wife contended that except that the wife had made certain phone calls, there was absolutely no evidence to accept the case of cruelty canvassed by the husband. According to him, the Family Court also concluded that the totality of the evidence of Rws 1 and 2 proved that they had no acquaintance with the 2nd respondent, the alleged adulterer and that it was the husband who had foisted such allegations against her in order to have a divorce. He therefore contended that in the light of these findings, the only course which was open to the Family Court was to dismiss the petition.

6. We have considered the submissions made and have also gone through the pleadings and the evidence adduced by the parties.

7. Evidence of PW1 shows that at the time of marriage and even now, he is employed in Saudi Arabia. While the relationship between the couple was cordial and peaceful, he started receiving anonymous phone calls from a person claiming that he had illicit relationship with his wife. When he received such calls during August, 2007, he made enquiries about the caller and came to know that it was a person from Pappinissery, which is near to Pazhayangadi, where the wife’s parental house is situated. He says that he was surprised when the caller revealed some private matters which is known only to the husband and wife and that he also used to reveal the details about the matters which took place in the bed room of the couple.

8. During November 2007, the husband came on leave and was in his house till February, 2008. At that time, the wife had two mobile phones with Nos.9895296217 and 9447690214. The husband found that most of the calls received by the wife and most of the outgoing calls were to a specific number and when he asked about it, the wife had no reasonable explanation except stating that the person concerned was a staff of the school where she is employed. He also stated that during February to May, 2005, the wife stayed with his mother in his parental home. During that period, the telephone bills were very high and therefore his brother obtained call details from the BSNL, which revealed that most of the outgoing calls were to a particular number viz., 9447371797. The details thus obtained also revealed that most of the calls continued for long and were made during mid night and odd hours.

9. It is stated that during February, 2008, the husband used to get anonymous calls repeatedly. When he informed this to his brother and also told him about the nature of the messages that he used to get, his brother gave him the call details obtained by him during 2005. Thereupon the husband made enquiries about the holder of phone number 9447371797 and it was revealed that it was the number of the 2nd respondent. At that time, the husband asked the wife about the 2nd respondent and the wife confessed that they were in good relationship for several years and that the relationship started from their school days. According to the husband, it was thereupon that he realised that his wife was still maintaining illicit relationship with the 2nd respondent and that it was she who was sharing the details of their relationship between the husband and wife. This according to the husband caused great mental pain and disgrace. The call details received from BSNL has been produced before the Family Court as Ext.A2 and Ext.A3 is the reply obtained from the BSNL under the Right to Information Act regarding the name and address of the owner of mobile phone bearing No.9447371797.

10. PW2 Sreekanth is a neighbour and a friend of the husband. Both of them have worked together in Saudi Arabia. He has deposed that during 2007 August, they were together in Damam. At that time, the husband had received anonymous phone calls and that the husband had informed him about the same. According to him, he advised him to ignore the phone calls. He has also stated that husband was surprised that the caller used to describe about what took place in the bed room of the husband and that the husband had shown him Ext.A2 call details during 2008 February, when he reached his house. He has also stated that both Sreekanth and the husband and his relatives had gone to meet the 2nd respondent and enquired about the details of the phone calls. Thereupon the 2nd respondent revealed that he was in love with the wife since from school days. He also stated that even after the marriage, their relationship continued and that recently the wife started keeping distance from him giving rise to enmity in him. He stated that it was therefore that he called to her husband and disclosed the details. PW2 also stated that when the details of what was revealed by the 2nd respondent were revealed to the wife, the wife admitted her relationship with the 2nd respondent and requested the husband to apologize her.

11. However, the case of RW1, the wife was that after marriage only she came to know that the husband was a selfish man who did not even like her talking to other men or her relatives. She also stated that he is not providing any maintenance to her or the children and that when he constructed a house, her relatives had contributed lakhs and lakhs of rupees and had given entire wooden articles necessary for the house. She alleged that after accepting lakhs and lakhs of rupees and her 50 sovereigns of gold ornaments, husband filed this petition for dissolution of marriage to marry another lady. According to her, the 2nd respondent is a close acquaintance of the husband and they colluded together to file this petition for dissolution of marriage.

12. In general, the above was the evidence that was available before the Family Court and evaluating the evidence available, the Family Court held that although the husband and PW2 were subjected to detailed cross examination, there was nothing to discredit either their testimony or to conclude that they fabricated a case for getting the marriage dissolved as alleged by the wife.

13. As far as the ground of cruelty urged by the husband is concerned, the Family Court has referred to the evidence adduced and found that maintaining a relationship with another person during the subsistence of the marriage with the husband has caused mental cruelty to the husband. In so far as this case is concerned, Exts.A2 and A3 and the oral evidence of PW1 and PW2 proved the subsistence of an illicit relationship between the wife and the 2nd respondent or else she would not have made calls to him for long durations and at odd hours and he would not have come to know the details of the sexual acts between the husband and the wife.

14. As far as the case of selfishness of the husband pleaded by the wife is concerned, his evidence amply demonstrated his concern for the wife and children. As far as the allegation that after obtaining lakhs and lakhs of rupees, husband has now fabricated a case for getting divorce is concerned, there again, the evidence of wife herself disproves this case. She has admitted before the Family Court that the husband used to send money to her account in SBI, Kannur from which she and her father used to withdraw substantial amounts. The husband had deposited `3,00,000/- in the Post Office, Pazhayangadi in her name from which she was getting `3,000/- per month. She also admitted that in Madayi Co-operative Bank, there is a Fixed Deposit of `5,00,000/- in her name made by the husband. She has also admitted that her children’s birthday used to be celebrated in an extravagant manner. She has confessed that her mother-in-law and the sister-in-law were cordial to her. Her evidence also showed that the husband had given her 14 sovereigns of gold and that the children were given chains weighing 1 sovereigns each at the time of their birthday. This therefore showed that the husband was a generous man and a loving and affectionate father.

15. It is true that the counsel for the wife referred to the observations of the Family Court that “from a totality of the evidence of RW1, it can be seen that it was PW1 who has foisted such allegations against her in order to have a divorce”. He also referred to the sentence “a totality of the evidence of RWs 1 and 2 proved that they have no acquaintance with the 2nd respondent.”

16. According to him, in view of these findings, the Family Court could not have granted any relief to the husband. However, if these findings are read in the context in which these observations are made, it can very well be seen that all that the Family Court was trying to convey was that this was the version of RWs 1 and 2 and were not findings arrived at by the Family Court.

17. This is a case where mental cruelty is pleaded and found by the Family Court. Concept of mental cruelty and the standard of proof that is required has come up for consideration of the Apex Court in Jayachandra v. Aneel Kaur (2005(1) KLT 26) and in para 10 to 13 of the judgment, the Apex Court has held thus;

10. The expression “cruelty” has not been defined in the
Act. Cruelty can be physical or mental. Cruelty which is
aground for dissolution of marriage may be defined as
willful and unjustifiable conduct of such character as to
cause danger to life, limb or health, bodily or mental, or
as to give rise to a reasonable apprehension of such a
danger. The question of mental cruelty has to be
considered in the light of the norms of marital ties of the
particular society to which the parties belong, their
social values, status, environment in which they live.
Cruelly, as noted above, includes mental cruelly, which

falls within the purview of a matrimonial wrong. Cruelty
need not be physical. If from the conduct of his spouse
same is established and/or an inference can be
legitimately drawn that the treatment of the spouse is
such that it causes an apprehension in the mind of the
other spouse, about his or her mental welfare then this
conduct amounts to cruelty. In delicate human
relationship like matrimony, one has to see the
probabilities of the case. The concept, a proof beyond
the shadow of doubt, is to be applied to criminal trials
and not to civil matters and certainly not to matters of
such delicate personal relationship as those of husband
and wife. Therefore, one has to see what are the
probabilities in a case and legal cruelty has to be found
out, not merely as a matter of fact, but as the effect on
the mind of the complainant spouse because of the acts
or omissions of the other. Cruelty may be physical or
corporeal or may be mental. In physical cruelty, there
can be tangible and direct evidence, but in the case of
mental cruelty there may not at the same time be direct
evidence. In cases where there is no direct evidence,
Courts are required to probe into the mental process and
mental effect of incidents that are brought out in
evidence. It is in this view that one has to consider the
evidence in matrimonial disputes.

11. The expression `cruelty’ has been used in relation to
human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one, which
is adversely affecting the other.
The cruelty may be menial or physical, intentional or
unintentional. If it is physical, the Court will have no
problem in determining it. It is a question of fact and
degree. If it is mental, the problem presents difficulties.
First, the enquiry must begin as to the nature of cruel
treatment, second the impact of such treatment in the
mind of the spouse, whether it caused reasonable
apprehension that it would be harmful or injurious to live
with the other. Ultimately, it is a matter of inference to
be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct

complained of itself is bad enough and per se unlawful
or illegal. Then the impact or injurious effect on the
other spouse need not be enquired into or considered.
In such cases, the cruelty will be established if the
conduct itself is proved or admitted {See Sobh Rani v.
Madhukar Reddi (AIR 1988 SC 121)).

12. To constitute cruelty, the conduct complained of
should be “grave and weighty” so as to come to the
conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse, It
must be something more serious than “ordinary wear
and tear of married life”. The conduct, taking into
consideration the circumstances and background has to
be examined to reach the conclusion whether the
conduct complained of amounts to cruelty in the
matrimonial law. Conduct has to be considered, as noted
above, in the background of several factors such as
social status of parties, their education, physical and
mental conditions, customs and traditions. It is difficult
to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute
cruelty. It must be of the type as to satisfy the
conscience of the Court that the relationship between
the parties had deteriorated to such an extent due to
the conduct of the other spouse that it would be
impossible for them to live together without mental
agony, torture or distress, to entitle the complaining
spouse to secure divorce. Physical violence is not
absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty
within the meaning of S. 10 of the Act. Mental cruelty
may consist of verbal abuses and insults by using filthy
and abusive language leading to constant disturbance of
mental peace of the other party.

13. The Court dealing with the petition for divorce on the
ground of cruelty has to bear in mind that the problems
before it are those of human beings and the
psychological changes in a spouse’s conduct have to be

borne in mind before disposing of the petition for
divorce. However, insignificant or trifling, such conduct
may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain
pitch of severity. It is for the Court to weigh the gravity.
It has to be seen whether the conduct was such that no
reasonable person would tolerate it. It has to be
considered whether the complainant should be called
upon to endure as a part of normal human life. Every
matrimonial conduct, which may cause annoyance to
the other, may not amount to cruelty. Mere trivial
irritations, quarrels between spouses, which happen in
day-to-day married life, may also not amount to cruelty.
Cruelty in matrimonial life may be of unfounded variety,
which can be subtle or brutal. It may be words, gestures
or by mere silence, violent or non- violent.

18. If the evidence in this case is appreciated in the light of

the principles laid down by the Apex Court, we are satisfied that

the evidence clearly indicated that the conduct of the wife

rendered it impossible for the husband to live with her without

mental agony, torture or distress. It is true that the couple have

twin daughters and it is unfortunate that their parents fell apart

and that too for reasons which are not only stigmatic to the

parents, but also to the children. However, the wife is an

educated lady and she having maintained an illicit relationship

cannot avoid the consequences nor can the husband be expected

to suffer on the ground that he has two children.19. In our view, the ground of cruelty having been proved,

there was no reason for the Family Court to have declined divorce

as prayed for by the husband.

20. In the result, MA No.324/13 filed by the husband will stand allowed. The judgment of the Family Court to the extent judicial separation is allowed is set aside. OP No. 256/11 will stand allowed and the marriage between the husband and wife solemnized on 29/1/2001 will stand dissolved by a decree of divorce with effect from today.

Mat.Appeal No.385/13 filed by the wife will stand dismissed.

Sd/-
ANTONY DOMINIC, Judge

Sd/-
P.D.RAJAN, Judge
Rp
//True Copy//

PA TO JUDGE
 

Bombay HC : Wife or husband’s attorney cannot appear in family courts u/s 13 of Family Courts Act.

August 29, 2013 Leave a comment

Bombay High Court

Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010

Bench: R. S. Dalvi

1

Amk

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 8954 OF 2009

Neelam Dadasaheb Shewale .. Petitioner Vs.

Dadasaheb Bandu Shewale .. Respondent Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner. Mr. R. T. Lalwani for the Respondent.

CORAM : MRS. R. S. DALVI, J.

DATE : 17TH FEBRUARY, 2010

JUDGMENT:

 

1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.

2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.

3. Two orders are passed upon three applications of the parties.

4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.

5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.

6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.

 

7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.

8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.

 

9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.

10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :

ORDER III :

1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

(emphasis supplied)

 

11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be “appearing, applying or acting” on his behalf. 7

 

12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8

could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.

 

13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9

the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.

 

14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10

permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

 

15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.

 

16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.

(R. S. DALVI, J.)

Kerala HC- ‘Infidelity over phone ground for divorce’

August 20, 2013 4 comments

KOCHI: Divorce can be granted on the ground of cruelty if a spouse maintains illicit relationship over phone, the Kerala high court has held.

The ruling by a division bench comprising Justices Antony Dominic and P D Rajan came while considering an appeal against Thalassery family court’s order denying divorce to a man on the ground of cruelty despite proving on the basis of his wife’s telephone records that she maintained an illicit relationship.

Phone records had shown that the wife used to call her childhood ‘friend’ for long hours during day and night while the husband was working abroad.

To decide the question whether maintaining such close relationship with another person over phone amounts to cruelty for granting divorce, the high court relied on a decision by the Supreme Court in 2004.

In A Jayachandra v Aneel Kaur case of 2004, the SC had held, “To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’.”

Granting divorce to the husband, the high court held, “If the evidence in this case is appreciated in the light of the principles laid down by the apex court, we are satisfied that the evidence clearly indicated that the conduct of the wife rendered it impossible for the husband to live with her without mental agony, torture, or distress.”

The wife is an educated lady and she having maintained an illicit relationship cannot avoid the consequences nor can the husband be expected to suffer on the ground that he has two children, the court held.

http://bit.ly/14X0jBE

 

To get entire Judgment pls Click Here

Bombay HC:- Once the Decree of Divorce is granted then the Application u/s 18 of HAMA becomes infructuous.

“7. It may be mentioned that in view of the merits of the case of the parties in the divorce petition, the wife would not have been granted alimony. Hence she did not prosecute any application for alimony in that petition and chose to maintain a separate application in another Court. ”

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 86 OF 2013
IN
CRIMINAL APPLICATION NO. 608 OF 2012
IN
CRIMINAL WRIT PETITION NO. 1280 OF 2011

Shri. Ganesh Madhukar Mestry ..  ApplicantVs.

Smt. Surekha Ganesh Mestry & Ors. ..  Respondents
Mr. Pramod Pawar for the Applicant.
Mr. P. N. Kulkarni for Respondent No.1.
Mr. A. B. Shinde for Respondent Nos.4, 5 & 6.
Mrs. A. A. Mane, APP for the Respondent­State.
AND
CRIMINAL APPLICATION NO. 608 OF 2012
IN
CRIMINAL WRIT PETITION NO. 1280 OF 2011
AND
CRIMINAL WRIT PETITION NO. 1280 OF 2011
Smt. Surekha Ganesh Mestry & Ors. ..  Applicant
Vs.
The Senior Inspector of Police & Ors. ..  Respondents
Mr. P. N. Kulkarni for the Applicant/Petitioner.
Mr. A. B. Shinde for Respondent Nos.4, 5 & 6.
Mrs. A. A. Mane, APP for the Respondent­State.
CORAM :  MRS. ROSHAN DALVI, J.
DATE :  7
th MARCH, 2013.
P.C.
1. This writ petition is filed by the petitioner­wife for production of
the respondent­husband through the Senior Inspector of Police on the ground
that the order of the Family Court dated 6th December, 2004 directing him to
pay maintenance and which was brought into execution has not been satisfied
or complied and the respondent­husband has not been found.
2. The order of maintenance of the Family Court dated 6th December,
2004 is an ex parte order.   It was passed when the husband and wife both
were absent.  The wife’s Advocate was present.  Upon the averments in the
affidavit of evidence filed by the wife and without any cross­examination the
order of maintenance came to be passed granting her the maintenance prayed
for.  That was sought to be carried in execution.
3. The application of the wife was under Section 18 of the Hindu
Adoption and Maintenance Act (HAMA).  The petitioner­wife was no longer
wife at the time of  the passing of  the order.   She was already divorced on
21.04.2003 by Civil Judge Senior Division, Ratnagiri on the ground of mental
cruelty made out by the husband.  The decree of divorce was not ex parte.  It
was upon contest.  It was contested by the wife and the wife was represented
by her Advocate.  She had cross­examined the husband.  The learned Judge
found from the evidence that there was mental cruelty and granted a decree of
dissolution of marriage on the ground of mental cruelty.  The wife knew about
decree.  Yet the wife did not inform the Family Court about the decree.  It was
for  the wife  to  apply  for  permanent maintenance under  Section  25 of  the
Hindu Marriage Act.  She has not filed a counter claim.  She did not apply for
such maintenance.  She did not lead evidence.  She did not cross­examine the
husband on the ground of alimony and permanent maintenance.  Issue in that
behalf was not raised.  It did not even have to be answered.  The wife did not
contest or apply for that at all.
4. The   wife’s  petition   separately   filed  in   the   Family  Court   under
Section  18  of  the HAMA would  become infructuous when  the marriage is
dissolved  by  a  decree  of divorce  by  the  competent Court.   That decree of
divorce   was   not   challenged.     Hence   the   wife’s   application   becomes
infructuous.     Yet   the   Advocate   on   behalf   of   the   wife   prosecuted   that
application ex parte and the order came to be passed.
5. Thereafter the wife laboured over that order in execution.
6. The husband had remained at large.  He neither appeared before
the Court nor did he inform that the wife’s application had become infructuous
nor complied with the order.   The husband appears  to have challenged the
order belatedly.  He filed his appeal in this Court in 2007 before the Division
Bench. It was delayed.  The delay was not condoned.  Hence the appeal came
to  be  dismissed.    On  that  premise  the  wife  continued  her  application  for
execution of the order of the Family Court obtained ex parte.  That order could
not have been passed in view of her divorce on the ground of her own mental
cruelty held to have been perpetrated upon the husband.  Hence the order is a
nullity.  The entire effort in execution is in vain.
7. It may be mentioned that in view of the merits of the case of the
parties in the divorce petition, the wife would not have been granted alimony.
Hence she did not prosecute any application for alimony in that petition and
chose to maintain a separate application in another Court.
8. Consequently the main prayer in the writ petition itself cannot be
granted.
9. The  husband  has  been  procured  by  the  relevant  police  officer
upon   a  warrant  executed  by   the   Court.    The   warrant is   cancelled.   Writ
petition is dismissed.
10. Criminal Application of the husband is accordingly granted.
11. Criminal Application of the wife is dismissed.
12. Execution Application in the Family Court itself does not survive
and cannot continue.
(ROSHAN DALVI, J.)
http://bombayhighcourt.nic.in/generatenew.php?path=./data/criminal/2013/&fname=WP128011070313.pdf&smflag=N

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