Wednesday, February 1, 2017

Consent cannot be withdrawn in Mutual Consent divorce u/s 13-B of Hindu Marriage Act.

. In the opinion of this Court, the following questions of law arise for
consideration by a division bench of this Court :-

A) Whether a party, which has under a settlement agreement decreed by
a Court undertaken to file a petition under Section 13B(1) or a motion
under Section 13B(2) of the Act, 1955 or both and has also undertaken to
appear before the said Court for obtaining divorce can be held liable for
contempt, if the said party fails to file or appear in the petition or motion or
both to obtain divorce in view of the option to reconsider/renege the
decision of taking divorce by mutual consent under Section 13B(2) of the
Act?

B) Whether by undertaking before a Court to file a second motion under
Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an
undertaking to a Court to that effect in a separate court proceeding, a party
waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes,
whether such right can be waived by a party under Section 13B(2) of the
Act, 1955?

C) Whether any guidelines are required to be followed by the Court
while recording the undertaking/agreement of the parties with respect to a
petition under Section 13B(1) or a motion under Section 13B(2) of the Act,
1955 or both for obtaining divorce?

D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia
Cont. Cas.(C) 772/2013 & Ors. 

(supra) are good law in view of the doubts expressed by this Court in paras

19 to 28 and in view of the Division Bench judgment in Dinesh Gulati
--------------------------------------------------------------------------------------------------------------------------

Cont. Cas.(C) 772/2013 & Ors. Page 1 of 29
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. APPL. 8610/2015 in CONT.CAS(C) 772/2013
RAJAT GUPTA ..... Petitioner
Through Mr. Prashant Mendiratta with
Ms. Poonam Mehndiratta and
Mr. Harshwardhan Pandey,
Advocates
versus
RUPALI GUPTA ..... Respondent
Through Mr. Ankur Mahindro with
Mr. Shresth Choudhary,
Ms. Megha Agarwal, Ms. Devna,
Mr. Adhirath and Mr. Aarzoo Aneja,
Advocates
WITH
+ CONT.CAS(C) 584/2014
KAMAL GODWANI ..... Petitioner
Through Mr. F.K. Jha with Mr. Sarvesh,
Advocates
versus
ANNU BHARTI ..... Respondent
Through Mr. B.K. Srivastava and Mr.Rajeev
Katyain, Advocates.
AND
+ CONT.CAS(C) 483/2016 & C.M. APPLS. 15724/2016, 28622/2016,
42418/2016
W CDR SITANSHU SINHA ..... Petitioner
Through Mr.Ashish Virmani with Ms.Paridhi
Dixit, Advocates.
versus
Cont. Cas.(C) 772/2013 & Ors. Page 2 of 29
PRACHI SINGH @ PRACHI SINHA ..... Respondent
Through Mr.Ajit Kumar with Ms.Nutan
Kumari, Advocates.
AND
+ CONT.CAS(C) 484/2016 & C.M. APPLS. 15728/2016, 42419/2016
WG CDR SITANSHU SINHA ..... Petitioner
Through Mr.Ashish Virmani with Ms.Paridhi
Dixit, Advocates.
versus
PRACHI SINGH @ PRACHI SINHA ..... Respondent
Through Mr.Ajit Kumar with Ms.Nutan
Kumari, Advocates.
AND
+ CONT.CAS(C) 648/2014
DR. ARUN SHARMA ..... Petitioner
Through Mr.Sunil Mittal, Sr.Advocate with
Ms.Seema Seth and Mr.Dhruv
Grover, Advocates.
versus
POOJA SHARMA ..... Respondent
Through Mr. Prashant Mendiratta with
Ms. Poonam Mehndiratta and
Mr. Harshwardhan Pandey,
Advocates
AND
+ CONT.CAS(C) 1116/2016
AMRITA KAUR SAXENA ..... Petitioner
Through Mr.Amit Grover, Advocate.
Cont. Cas.(C) 772/2013 & Ors. Page 3 of 29
versus
GAURAV SAXENA ..... Respondent
Through Ms.Mrinalini Khatri, Advocate.
AND
+ CONT.CAS(C) 1147/2016
NAVEEN KUMAR JAIN ..... Petitioner
Through Mr.C.Rajaram with Mr.Sashi Panwar
and Mr.T.Kanniappan, Advocates.
versus
INDU JAIN ..... Respondent
Through Mr. Parvinder Chauhan, Advocate
with Mr. Nitin Jain, Advocate.
AND
+ CONT.CAS(C) 1251/2016
VIKAS SHARMA ..... Petitioner
Through Mr.Atul Kharbanda, Advocate.
versus
SHALINI CHHABRA ..... Respondent
Through Mr.Jitendra Kumar Jha with
Mr.Rupam Roy, Advocates.
AND
+ CONT.CAS(C) 484/2014
DEEPAK BATRA ..... Petitioner
Through Mr.Akhilesh Aggarwal, Advocate.
Cont. Cas.(C) 772/2013 & Ors. Page 4 of 29
versus
SWATI BATRA ..... Respondent
Through
% Date of Decision: 09th January, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN, J: (Oral)
1. Present batch of contempt petitions has been filed alleging wilful
disobedience of undertakings given by a spouse to appear, sign and file both
the 13B(1) petition and 13B(2) motion of the Hindu Marriage Act, 1955
(hereinafter referred to as "Act, 1955"). These undertakings have been
accepted by a Court either at Section 13B(1) stage or incorporated in a
consensual decree. In all cases except Cont.Cas(C) Nos.1147/2016 and
1251/2016 the undertakings are against consideration.
2. Mr. Prashant Mendiratta, learned counsel for Mr. Rajat Gupta and
Ms. Pooja Sharma states that the Contempt of Courts Act, 1971 defines civil
contempt to be a wilful breach of undertaking given to a Court or order of a
Court. He submits that undertakings given to Courts and orders passed by
Courts are to be complied with in all circumstances.
3. According to him, the consent for mutual divorce by way of joint
petition under Section 13B of the Act, 1955 cannot be withdrawn by a party
for mala fide and extraneous reasons. In support of his submission, he relies
upon a judgment of the Bombay High Court in Rajesh Pratap Sainani Vs.
Mrs. Bhavna, 2008 SCC OnLine Bom 800 wherein it has been held as
under:-
― 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, hi the present case, if the
withdrawal of consent by the petitioner-husband is upheld, it will
cause anomalous 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.‖
4. Mr. Mendiratta further submits that in circumstances similar to the
present batch of matters, the Delhi High Court in Avneesh Sood Vs. Tithi
Sood, Cont.Cas(c) 559/2011 and Shikha Bhatia Vs. Gaurav Bhatia & Ors.,
2010 SCC OnLine Del 1962 has held that contempt is attracted for breach of
undertaking accepted by the Court to file a petition as well as second motion
for divorce. The relevant portion of the aforesaid judgments is reproduced
hereinbelow:-
A) Avneesh Sood (supra) wherein it has been held as under:-
―46. As aforesaid, the respondent was not bound to give the said
undertaking to the Court. However, having given the same,
voluntarily and consciously, with a view to derive the benefit of
the agreement with the petitioner, if the respondent walks out of
the same, only for the reason that she has changed her mind with
regard to the custody/visitation rights of the minor child, she
must take the consequences. Pertinently, even now, the
respondent is not averse to proceeding with the mutual divorce
petition and filing a second motion petition. However, she wants
to do the same on her own terms in relation to alimony and
custody/visitation rights, contrary to her earlier agreement which
formed the basis of the first motion petition. It is, therefore, clear
that her decision to withhold her consent for moving the second
motion petition does not stem out of any new development or
mitigating circumstance which would justify the same, but only
on account of her having a change of mind on the aforesaid two
aspects. It is not that the respondent has decided to continue with
the marriage with the petitioner. She has not expressed any
desire to resume marital life with the petitioner. It is not her case
that her initial decision to move the mutual consent divorce
petition was a decision taken by her in haste or was a mistake.
Even now she does not dispute the fact that the marriage has, in
fact, broken down but she wants to use her right not to give
consent for the second motion petition as a bargaining point,
which the petitioner prefers to call a black mail tactics.
47. No doubt the law gives the right to both the parties to take a
decision whether, or not, to continue with the mutual consent
divorce proceedings, and for that purpose a cooling off period of
at least 6 months is provided under the scheme of the Act. It does
not mean that an undertaking given by them to the Court to
continue their consent even for moving the second motion
petition can be said to be an illegal consent or undertaking or an
undertaking recorded by the Court without jurisdiction. She,
while giving her undertaking, did not undertake to commit an
illegality, or to do anything which is barred by law. No one
compelled the respondent to give the said undertaking. She could
have kept her options open whether, or not, to give her consent
for moving the second motion petition at the end of the cooling of
period of six months. But she did consciously decide to give the
said undertaking to the Court. This she did to derive benefit
under the agreement with the petitioner.
Cont. Cas.(C) 772/2013 & Ors. Page 7 of 29
48. If a party is permitted to resile from an undertaking given to
the Court, in pursuance of an agreement arrived at between the
parties, without any penal consequences, the same would
completely destroy the sanctity attached to such solemn
undertakings, and would encourage dishonesty and disrespect
for the judicial process. It would also undermine the majesty and
authority of courts, and instill doubts in the minds of the
litigating public with regard to the efficacy of the judicial
process and, in particular, with regard to the process of
accepting undertakings by the Court and of the efficacy of the
undertakings given to the Court by a party, and the acceptance
thereof by the Court, as a part of a settlement process. It was on
account of the respondent's conduct of voluntarily giving her
undertaking to the Court to abide by her settlement, and the
acceptance thereof by the Court, which led the petitioner to
agree to pay an amount of Rs. 7 crores in all to the respondent,
and to part with a huge amount of Rs. 1.5 cores at the first
motion stage. The respondent cannot make mockery of the law
and mock at the Courts by now claiming that she has decided not
to give her consent for moving the second motion petition, and
that too for the reasons that she wants to renegotiate the terms of
settlement, both in relation to her monetary compensation and
custody/visitation rights in respect of the minor child. It is clear
that the respondent has exploited and abused the process of the
Court to serve her purpose, without intending to adhere to her
solemn undertaking given to the Court.
B) Shikha Bhatia (supra) wherein it has been held as under:-
―26. In this case, the respondents had entered into an agreement
with the petitioner herein with open eyes and the terms of the
agreement have been acted upon. No doubt the law provides that
a party has a right to withdraw the consent given but the reasons
for withdrawal as in the case of Smt. Sureshta Devi (supra) was
that the wife had been coerced and forced to enter into signing
the petition for mutual consent without allowing her to consult
her family members nor she was permitted to bring her family
members to Court at the time when the statement was made,
besides that the wife at the first opportunity available withdraw
her consent. Crime against women are on the rise. Keeping in
view the facts of this case, if the husband respondent No. 1 is
allowed to resile from the settlement recorded in Court on the
basis of express statement and representation of respondent No.
1 to the effect of settlement between the parties, the Court
considered the anticipatory bail application of the respondents
favourably, it would amount to allowing the respondent to steal
an order of bail from the Court and thus interfering in the course
of justice. It would encourage unscrupulous persons and would
certainly open flood gates for such litigants, to sham settlement
at the time when the bail application is being considered and
later on simply plead that the settlement was not out of free will.
The respondents cannot be permitted to make a mockery of the
legal system and such willful and deliberate disobedience of the
order of the Court would weaken the rule of land. The mindset of
the respondent No. 1 and his conduct is established by the
statement made during cross-examination that the settlement was
signed by him as was asked by his lawyer, that it was necessary
for the anticipatory bail in the criminal cases. This itself speaks
volume of the legal advice rendered and the conduct of the
respondents. In the case of Kapildeo Prasad Sah v. State of
Bihar, (1999) 7 SCC 569, it was held as under:
―For holding the respondents to have committed contempt,
civil contempt at that, it has to be shown that there has been
wilful disobedience of the judgment or order of the Court.
Power to punish for contempt is to be resorted to when
there is clear violation of the Court's order. Since notice of
contempt and punishment for contempt is of far reaching
consequence, these powers should be invoked only when a
clear case of wilful disobedience of the Court's order has
been made out. Whether disobedience is wilful in a
particular case depends on the facts and circumstances of
that case. Judicial orders are to be properly understood and
complied. Even negligence and carelessness can amount to
disobedience particularly when attention of the person is
drawn to the Court's orders and its implication.
Disobedience of Court's order strikes at the very root of
Cont. Cas.(C) 772/2013 & Ors. Page 9 of 29
rule of law on which our system of governance is based.
Power to punish for contempt is necessary for the
maintenance of effective legal system. It is exercised to
prevent perversion of the course of justice.
In his famous passage, Lord Diplock in Attorney
General v. Times Nexvspapers Ltd., (1973) 3 All.E.R. 54
said that there is also ―an element of public policy in
punishing civil contempt, since administration of justice
would be undermined if the order of any Court of law could
be disregarded with impunity‖. Jurisdiction to punish for
contempt exists to provide ultimate sanction against the
person who refuses to comply with the order of the Court or
disregards the order continuously. Initiation of contempt
proceedings is not a substitute for execution proceedings
though at times that purpose may also be achieved.
No person can defy Court's order. Wilful would exclude
casual, accidental bona fide or unintentional acts or
genuine inability to comply with the terms of the order. A
petitioner who complains breach of Court's order must
allege deliberate or contumacious disobedience of the
Court's order.
xxxx xxxx xxxx xxxx
31. It may also be noticed that respondent No. 1 has not signed
the first motion it cannot be said that the second motion would
have been filed without the gap of six months. This submission is
also accordingly rejected. Since there is no quarrel with regard
to the proposition that there has to be gap of six months between
the first motion and the second motion, the judgment relied upon
by Counsel for the respondents Smt. Sureshta Devi v. Om
Prakash, (1991) 2 SCC 25 as also Anil Kumar Jain (supra)
require no discussion as in this case the first motion was not
signed by the parties."
5. Mr. Mendiratta also submits that it is a trite position in law that a
Cont. Cas.(C) 772/2013 & Ors. Page 10 of 29
person can contract themselves out of a statutory right intended for their
benefit provided such act does not impinge on the public policy. Release of
statutory right by a person is also called waiver. According to him, a person
is said to waive his/her statutory right if he/she voluntarily relinquishes the
same in consideration of some act by another person. A waiver of right,
based upon contract, gives rise to a cause of action. A contract under which
a person has waived his/her right is valid and enforceable provided such
waiver does not impinge upon public policy. In support of his submission,
he relies upon the following judgments:-
(i) Shri Lachoo Mal Vs. Shri Radhey Shyam, (1971) 1 SCC 619
wherein the Supreme Court has held as under:-
― 6. The general principle is that every one has a right to waive
and to agree to waive the advantage of a law or rule made
solelyfor the benefit and protection of the individual in his
private capacity which may be dispensed with without
infringing any public right or public policy. Thus the maxim
which sanctions the non-observance of the statutory provision
is cuilibet licet renuntiare juri pro se introducto. (See Maxwell
on Interpretation of Statutes, Eleventh Edn., pp. 375 and 376).
If there is any express prohibition against contracting out of a
statute in it then no question can arise of any one entering into
a contract which is so prohibited but where there is no such
prohibition it will have to be seen whether an Act is intended to
have a more extensive operation as a matter of public
policy……‖
(ii) Krishna Bahadur Vs. Purna Theatre & Ors., (2004) 8 SCC 229
wherein the Supreme Court has held as under:-
―10. A right can be waived by the party for whose benefit certain
requirements or conditions had been provided for by a statute
subject to the condition that no public interest is involved therein.
Whenever waiver is pleaded it is for the party pleading the same
to show that an agreement waiving the right in consideration of
some compromise came into being. Statutory right, however, may
also be waived by his conduct.‖
(iii) Union of India Vs. Pramod Gupta (D) By Lrs. & Ors., (2005) 12
SCC 1 wherein the Supreme Court has held as under:-
―111. It is, therefore, not correct to contend that there cannot be any
waiver of the right to claim interest. Statutory provisions are made for
payment of interest with a view to compensate a party which had
suffered damages owing to a positive action or inaction of the other
resulting in blockade of money which he would otherwise have
received. A party which itself represents before the court of law that it
would not claim interest with a view to obtain an order of stay which
would be for its own benefit, in our opinion, could not be permitted to
take advantage of its own wrong. (See Sushil Kumar v. Rakesh
Kumar [(2003) 8 SCC 673] and Laxminarayan R. Bhattad v. State of
Maharashtra [(2003) 5 SCC 413].)‖

6. He points out that in Municipal Corporation of Greater Bombay Vs.
Dr. Hakimwadi Tenants’ Association and Ors., (1988) Supp. SCC 55, the
Supreme Court held that procedure under Section 5A of the Land
Acquisition Act with respect to hearing of objections to the proposed land
acquisition could be waived. The relevant portion of the judgment relied
upon is reproduced hereinbelow:-
―18. The right to claim enhanced compensation or for that
matter the right to seek reference to the civil Court with a view to
get the enhanced compensation is a right intended solely for the
benefit of the landholder. It is purely a personal right conferred
on him. If such right is waived or given up by his voluntary
action, no considerations of public policy would arise, much less
would there be any negation of public rights. Nor is there any
prohibition in law against waiving the right conferred on him
Cont. Cas.(C) 772/2013 & Ors. Page 12 of 29
under Section 18. We do not therefore visualise any legal
impediment for applying the doctrine of waive.

7. Mr. Sunil Mittal, learned senior counsel for petitioner Dr. Arun
Sharma in Cont. Cas.(C) 648/2014 states that in pursuance to the 59th Report
(1974) of the Law Commission, Order 32A was inserted by Act 104 of 1976
in Code of Civil Procedure to deal with the matters concerning family
disputes. He points out that simultaneously in 1976, Section 13B was
introduced in the Act, 1955 to allow dissolution of marriage by mutual
consent. According to him, as the legislature felt the need in public interest
to establish Family Courts for speedy settlement of family disputes, it
enacted Family Court Act, 1984. He submits that all the aforesaid
amendments were brought about in law to encourage settlement between the
parties in Family Law matters.

8. According to Mr. Sunil Mittal, wherever the parties have signed the
mediation settlement and the same has been accepted/approved by the
referral court, it has to be taken as if the parties to the settlement had waived
their individual right to withdraw their consent.

9. On the other hand, Mr. Ankur Mahindro, learned counsel for
respondent in Cont. Cas. (C) No. 772/2013 submits that if one of parties
refuses to join/give consent for recording of statement under Section 13B(2)
of the Act, 1955, then the Family Court cannot pass a decree of divorce
based upon mutual consent as contemplated under Section 13B of the Act,
1955 and such an act cannot constitute contempt. In support of his
submission, he relies upon the judgement of the Division Bench of this
Court in Dinesh Gulati Vs. Ranjana Gulati, MAT. APP. (F.C.) 70/2016
decided on 2
nd August, 2016.

10. Mr. Ankur Mahindro submits that the concept of marriage is not a
contract under Hindu law and despite the inclusion of 13B of the Act, 1955,
the intention of the legislature is not to allow divorce on grounds of
irreconcilable differences.

11. He further submits that Section 13B of the Act, 1955 is a complete
code in itself which provides for cause of action, grounds and reasons which
are required to be satisfied by the parties, the procedure to be followed by
the Court and the premise which ought to be taken into consideration by the
Court before it passes a decree of divorce on the ground of mutual consent
and jurisdiction of the Court to grant a relief under the provisions of the Act,
1955 is controlled by legislative limitation of the respective provisions. In
support of his submission, he relies upon following judgments:-
A) Miten S/o. Shyamsunder Mohota (Goidani) and Anr. Vs. Union of
India, 2008 (55) MhLj 27 wherein it has been held as under:-
"23.......Prior to the amendment Act of 1976, the remedy of
divorce under Hindu Marriage Act was entirely based upon guilt
theory i.e. where one party accused other of having committed
acts and deeds which would entitle other for seeking divorce in
compliance with the provisions of the Act. The 1976 amendments
added a concept of mutuality in relation to dissolution of
marriage. The purpose of introducing mutuality was not to
dissolve the marriages between the newly wed at the drop of the
hat without any reason/justification............ The purpose of
providing time is to give an opportunity to the parties to
harmonise their lives rather than taking steps hastily to destroy
the institution of marriage and convert Hindu marriage purely to
a contractual relationship."
B) Principal Judge, Family Court, Nagpur Vs. Nil, AIR 2009 BOM 12
wherein it has been held as under:-
"14. The Supreme Court in the case of Smt. Sureshta Devi termed
this period as a waiting period, obviously, intended to give
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 second thought and change mind not to proceed
with the petition. The mutual consent ought to continue from the
date of institution of first motion till passing of the decree. This is
the significance of the provisions of section 13B(2) of the Act. It
will not only be unjust but would be impermissible on accepted
norms of statutory interpretation that this period of six months is
treated as optional, condonable or could be waived at the request
of the parties. The law must be given a meaning that would be
applicable and acceptable generally and not to a particular case.
Firstly, the legislature has not provided any power of relaxation
to the Court in regard to the stated period of six months under
section 13B(2). Secondly, if this procedure is adopted at the
behest of the parties by the Court, it will amount to denial of a
statutory benefit of rethinking. The period of six months is the
product of the legislature and the Courts have always upheld its
validity. To waive or abolish by judicial dictum a specific
provision of the legislature would amount to negating a statutory
provision which is otherwise constitutional and cannot easily be
dropped in reality. No prejudice is caused to the parties by merely
waiting for a short period of six months before they take a vital
and pertinent decision in regard to their marriage which is a
social sacrament coupled with civil rights and obligations and
which they had entered upon voluntarily and happily. Impulsive
and impatient decisions rarely guide the parties to the logical and
correct decision. They must have time to ponder over their
decision and reassure themselves that the decision of dissolving
their marriage is correct and needs to be implemented. For
arriving at such a vital decision, the period of six months is to be
held as mandatory and in conformity with the legislative intent
expressed in no uncertain terms in the relevant provisions.

15. We can hardly see any reason for giving an unnecessary
liberal interpretation to the provisions of section 13B(2) of the Act
by reading into these provisions power of relaxation with the
Court. Wherever the legislature wanted to grant such a
relaxation, it has undoubtedly spelt out so in the provisions itself.
Reference can be made in this regard to section 14 of the Act
wherein extreme hardship or cruelty has been given as grounds
for the Court to entertain the petition by granting relief to present
the petition for divorce even before the expiry of the specified
period of one year. If that being the scheme of the Act, we are
unable to assent to the view that the power of relaxation or waiver
should be read into section 13-B of the Act in face of the clear
language of the provision and the judgment of the Supreme Court
in the case of Smt. Sureshta Devi. Legislative scheme and object
of the Act shows that object of the Act is to attribute social and
matrimonial security to the institution of marriage rather than to
dissolve marriage at the drop of the hat. ........"
12. Mr. Ankur Mahindro submits that waiver is a question of fact and it
must be properly pleaded and proved. He states that in the present cases
neither any plea of waiver has been pleaded nor the factual foundation for it
has been laid in the pleadings. In support of his submission, he relies upon
Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh & Ors.,
(1979) 2 SCC 409.
13. Mr. Ankur Mahindro also submits that the public policy of India as
enshrined in Section 13B of the Act, 1955 does not allow marriage to be
dissolved, in any other manner, except in accordance with its provisions.
14. He points out that the Kerala High Court in the case of K.V.
Janardhanan Vs. N.P. Syamala Kumari & another, M.F.A. No. 386/1988
decided on 15th January, 1990 has observed that an agreement to dissolve a
marriage in derogation of the provisions of the Act, 1955 is violative of the
public policy of India. The relevant portion of the judgment relied upon by
him is reproduced hereinbelow:-

"6. But compromise between parties in divorce proceedings,
agreeing with each other to dissolve the marriage was never
regarded in law as consistent with public policy. Even evidence
given by parties admitting matrimonial offences was frowned at
by the courts. Lord Mansfield expressed his disapproval against
such admission of parties themselves in divorce proceedings
way back in 1777 (vide Goodright's case, (1) COWP 591). The
same was the stand adopted by the House of Lords
in Russel v. Russel, (1924) AC 687. The legislative policy, in
India has not changed from the aforesaid approach. That is
why the statutes governing law of divorce even now insist that
the court should guard against collusion between parties for
wangling unmerited divorce decrees. The Hindu Marriage Act
with all its progressive innovations still retains the provision
which cautions the court to guard against collusion between
spouses. Marriage as an institution has a bearing on the society
and in divorce proceedings the parties are not actually
restricted to the spouses alone since their children are also
affected persons. This is one of the main reasons which stands
against such compromises. Section 13B in the Act is not to be
understood as carte blenche granted by Parliament to the
spouses to dissolve the marriage on mutual agreement. The
said provision contains certain other postulates also despite the
dominance of mutual agreement factor therein. Section 23 of
the Act emphasises that the court can pass a decree only on
satisfaction that any of the grounds for granting relief exists.
The said section imposes a duty on the court to consider and
decide on the existence or non-existence of certain other factors
enumerated therein. The closing words in Section 23(1) reflects
the Parliament's concern in the matter. Those words are these:
―then, an in such a case, but not otherwise, the court shall
decree such relief accordingly‖. The prohibition incorporated
in the paranthetical clause is eloquent and cannot be
overlooked."
15. He states that the Punjab & Haryana High Court in Usha Devi Vs.
Mahinder, Criminal Revision No. 2362 of 2008 (O&M) decided on 1
st
Cont. Cas.(C) 772/2013 & Ors. Page 17 of 29
July, 2009 has held that a divorced wife cannot waive its claim to
maintenance under Section 125 Cr. P.C. by making a statement to this
effect, at the time of divorce. The relevant portion of the judgment relied
upon by him is reproduced hereinbelow:-
"A perusal of these extracts leaves no manner of doubt that a
statement made by a wife, giving up her right of maintenance or
an agreement to that effect would not estop a wife, whether
divorced or otherwise, from filing a petition under Section
125 of the Code. Such a statement or agreement would be
opposed to public policy and would violate Section 23 of the
Indian Contract Act , 1872 being an agreement unenforceable in
law. Any conclusion to the contrary would be opposed to the
statutory provisions of the Act and would be violative of the
public policy that underlines the provisions of Section 125 of the
Code."
16. Mr. Ankur Mahindro lastly submits that the Court has no jurisdiction
to go into the bona fides or reasonableness of withdrawal of consent and the
Court cannot adjudicate upon the merits of such withdrawal. In support of
his submission, he relies upon the judgment of the Division Bench of the
Kerala High Court in Rajesh R. Nair Vs. Meera Babu, AIR 2014 Ker 44
wherein it has been held as under:-
"18. The further question to be considered is whether once
consent is given and is later withdrawn by one of the parties,
whether the Court can enquire into the bona fides or otherwise
of the withdrawal of the consent. By providing that the enquiry
under Section 13B(2) shall be only if consent is not withdrawn,
the statute specifically recognizes the right of the parties to
withdraw the consent even at the stage of the enquiry
contemplated under Section 13B(2). That right available to the
parties is an unqualified right and for any reason whatsoever, if
the parties or one of them, choose to withdraw their consent,
such withdrawal of consent is in exercise of the right available
Cont. Cas.(C) 772/2013 & Ors. Page 18 of 29
under Section 13B(2). If that be so, it is not for the court to
probe into the bona fides or reasonableness of withdrawal of
consent and once consent is withdrawn, the only option
available to the Court is to close the matter at that stage. If that
be the legal position, we are unable to find any fault on the part
of the Family Court in having dismissed the petition on the
ground of non-compliance of the requirement of Section 13B(2)
of the Act."

17. In rejoinder, Mr. Sunil Mittal, learned senior counsel for petitioner
submits that the Division Bench judgment in Dinesh Gulati (supra) is per
incuriam inasmuch as it has not taken note of the judgment of this Court in
Avneesh Sood (supra) and Shikha Bhatia Vs. Gaurav Bhatia, 2011 SCC
OnLine Del 1014.

18. He further submits that the judgments relied upon by learned counsel
for respondent are not good law as they have not considered the effect of the
judgment of the Supreme Court in the case of Afcons Infrastructure Ltd. &
Anr. Vs. Cherian Varkey Construction Co. (P) Ltd. & Ors., (2010) 8 SCC
24 wherein it has been held as under:-
"38. The other four ADR processes are non-adjudicatory and the
case does not go out of the stream of the court when a reference
is made to such a non-adjudicatory ADR forum. The court
retains its control and jurisdiction over the case, even when the
matter is before the ADR forum. When a matter is settled
through conciliation, the settlement agreement is enforceable as
if it is a decree of the court having regard to Section 74 read
with Section 30 of the AC Act. Similarly, when a settlement takes
place before the Lok Adalat, the Lok Adalat award is also
deemed to be a decree of the civil court and executable as such
under Section 21 of the Legal Services Authorities Act, 1987.
Though the settlement agreement in a conciliation or a
settlement award of a Lok Adalat may not require the seal of
approval of the court for its enforcement when they are made in
Cont. Cas.(C) 772/2013 & Ors. Page 19 of 29
a direct reference by parties without the intervention of court,
the position will be different if they are made on a reference by a
court in a pending suit/proceedings. As the court continues to
retain control and jurisdiction over the cases which it refers to
conciliations, or Lok Adalats, the settlement agreement in
conciliation or the Lok Adalat award will have to be placed
before the court for recording it and disposal in its terms.
39. Where the reference is to a neutral third party (―mediation‖
as defined above) on a court reference, though it will be deemed
to be reference to Lok Adalat, as the court retains its control and
jurisdiction over the matter, the mediation settlement will have
to be placed before the court for recording the settlement and
disposal. Where the matter is referred to another Judge and
settlement is arrived at before him, such settlement agreement
will also have to be placed before the court which referred the
matter and that court will make a decree in terms of it.
40. Whenever such settlements reached before non-adjudicatory
ADR fora are placed before the court, the court should apply the
principles of Order 23 Rule 3 of the Code and make a
decree/order in terms of the settlement, in regard to the subjectmatter
of the suit/proceeding. In regard to matters/disputes
which are not the subject-matter of the suit/proceedings, the
court will have to direct that the settlement shall be governed by
Section 74 of the AC Act (in respect of conciliation settlements)
or Section 21 of the Legal Services Authorities Act, 1987 (in
respect of settlements by a Lok Adalat or a mediator). Only then
such settlements will be effective."

19. Having heard learned counsel for the parties, this Court is of the view
that it is first necessary to determine as to whether Section 13B of the Act,
1955 postulates mutuality/consent for divorce to continue till the time the
decree of divorce is passed and if so, whether such a condition precedent
incorporates a legislative policy which cannot be waived by either of the
spouses, even for valuable consideration.

20. Consequently, it is essential to analyse Section 13B of the Act, 1955.
The said Section reads as under:-
"13B. Divorce by mutual consent.—(1) Subject to the
provisions of this Act a petition for dissolution of marriage by a
decree of divorce may be presented to the district court by both
the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the ground that they have
been living separately for a period of one year or more, that
they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier
than six months after the date of the presentation of the petition
referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the
meantime, the court shall, on being satisfied, after hearing the
parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the
petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the
decree."

21. In the opinion of this Court, the consent given by the parties either at
the time of execution of a settlement agreement bearing the imprimatur of a
Court or at the time of filing of the petition under Section 13B(1) of Act,
1955 for divorce, has to subsist till the date the decree of divorce is issued.
The period of waiting ranging from six to eighteen months is intended to
give an opportunity to the parties to reflect/renege and if one of the parties
does not wish to proceed ahead with the divorce during this period, then
divorce cannot be granted. Further, the Court has to be satisfied about the
Cont. Cas.(C) 772/2013 & Ors. Page 21 of 29
bona fide and consent of the parties till the date of decree - and if it is not so,
the Court gets no jurisdiction to pass a decree for divorce. In fact, the
Supreme Court in Smt. Suresta Devi Vs. Om Prakash, (1991) 2 SCC 25 has
held as under:-
"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 subsection
(2). There is nothing in the section which prevents such
course. The section does not provide that if there is a change of
mind it should not be by one party alone, but by both. The High
Courts of Bombay and Delhi have proceeded on the ground
that the crucial time for giving mutual consent for divorce is the
time of filing the petition and not the time when they
subsequently move for divorce decree. This approach appears
to be untenable. At the time of the petition by mutual consent,
the parties are not unaware that their petition does not by itself
snap marital ties. They know that they have to take a further
step to snap marital ties. Sub-section (2) of Section 13-B is
clear on this point. It provides that ―on the motion of both the
parties. … if the petition is not withdrawn in the meantime, the
court shall … pass a decree of divorce …‖. What is significant
in this provision is that there should also be mutual consent
when they move the court with a request to pass a decree of
divorce. Secondly, the court shall be satisfied about the bona
fides and the consent of the parties. If there is no mutual
consent at the time of the enquiry, the court gets no jurisdiction
to make a decree for divorce. If the view is otherwise, the court
could make an enquiry and pass a divorce decree even at the
instance of one of the parties and against the consent of the
other. Such a decree cannot be regarded as decree by mutual
consent.

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's Laws of England, 4th edn.,
vol. 13 para 645; (ii) Rayden on Divorce, 12th edn., vol. 1, p.
291; and (iii) Beales v. Beales [(1972) 2 All ER 667, 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."'
(emphasis supplied)
22. The aforesaid view has been reiterated by the Supreme Court in the
case of Hitesh Bhatnagar Vs. Deepa Bhatnagar, (2011) 5 SCC 234.
23. The Supreme Court in the case of Anil Kumar Jain Vs. Maya Jain,
(2009) 10 SCC 415 has also held that the period of six months between
filing a petition of divorce by mutual consent under Section 13B(1) of the
Act, 1955 and grant of decree of divorce under Section 13B(2) of the Act,
1955 cannot be waived off by the parties or by any civil court or High Court.
The relevant portion of the said judgment is reproduced hereinbelow:-
Cont. Cas.(C) 772/2013 & Ors. Page 23 of 29
"29. In the ultimate analysis the aforesaid discussion throws up
two propositions. The first proposition is that although
irretrievable breakdown of marriage is not one of the grounds
indicated whether under Sections 13 or 13-B of the Hindu
Marriage Act, 1955 for grant of divorce, the said doctrine can
be applied to a proceeding under either of the said two
provisions only where the proceedings are before the Supreme
Court. In exercise of its extraordinary powers under Article 142
of the Constitution the Supreme Court can grant relief to the
parties without even waiting for the statutory period of six
months stipulated in Section 13-B of the aforesaid Act. This
doctrine of irretrievable breakdown of marriage is not
available even to the High Courts which do not have powers
similar to those exercised by the Supreme Court under Article
142 of the Constitution. Neither the civil courts nor even the
High Courts can, therefore, pass orders before the periods
prescribed under the relevant provisions of the Act or on the
grounds not provided for in Sections 13 and 13-B of the Hindu
Marriage Act, 1955.

30. The second proposition is that although the Supreme Court
can, in exercise of its extraordinary powers under Article 142
of the Constitution, convert a proceeding under Section 13 of
the Hindu Marriage Act, 1955, into one under Section 13-B and
pass a decree for mutual divorce, without waiting for the
statutory period of six months, none of the other courts can
exercise such powers. The other courts are not competent to
pass a decree for mutual divorce if one of the consenting
parties withdraws his/her consent before the decree is passed.
Under the existing laws, the consent given by the parties at the
time of filing of the joint petition for divorce by mutual consent
has to subsist till the second stage when the petition comes up
for orders and a decree for divorce is finally passed and it is
only the Supreme Court, which, in exercise of its extraordinary
powers under Article 142 of the Constitution, can pass orders
to do complete justice to the parties."
(emphasis supplied)


24. Further, if the submission of the petitioners is accepted then it would
amount to applying two contrary parameters inasmuch as though the parties
would be asked to wait for the mandatory period of six months, yet at the
same time neither of the parties would be allowed to rethink or go back on
their undertaking during the waiting period, i.e., between allowing the
petition under Section 13B(1) and before filing of motion under Section
13B(2) of the Act, 1955. In the opinion of this Court, a strict enforcement of
undertaking/settlement agreement/consent decree would make the
mandatory waiting period otiose and defeat the statutory object to rethink
and reconsider the decision to go ahead with mutual divorce before
pronouncement of decree under Section 13B(2) of the Act, 1955.

25. This Court is of the opinion that the legislative intent is not that a
marriage should be dissolved only on the basis of consent given in a prior
settlement agreement bearing the imprimatur of a Court or at the stage of
Section 13B(1) petition just because it was coupled with consideration.

26. Undoubtedly, as held in in Avneesh Sood (supra) and Shikha Bhatia
(supra), no litigant can be allowed to wriggle out of a solemn undertaken
given to a Court and orders of the Courts have to be obeyed until and unless
they are set aside in appeal/revision, yet this Court is of the view that the
statutory option to reflect and retract cannot be taken away just because one
of the parties has given an undertaking or has accepted either some money
or benefit at the 13B(1) stage. However, one cannot retain a benefit
received at the 13B(1) stage, if he/she is not willing to go ahead with the
second motion. A party who has developed second thoughts has to return
the benefit received either under the settlement agreement or at 13B(1)
stage. But, in the opinion of this Court, it would not be proper to force the
party who has developed second thoughts in accordance with the option
given by the statute, to go ahead with the divorce at the pain of contempt.
Consequently, this Court has grave doubts as to the applicability of the
judgment in Afcons Infrastructure Ltd. & Anr. (supra) to the present batch
of matters.

27. Also, if the statutory requirement is of continuous consent till the
second motion is allowed, then this Court has grave doubt as to whether the
action of a party exercising its statutory right to rethink/renege can be
termed as mocking at the Court or encouraging dishonesty or indulging in
fraud/ misrepresentation as held in Avneesh Sood (supra) and Shikha
Bhatia (supra).

28. Moreover, as rightly pointed out by learned counsel for the
respondent, the judgment of the Division Bench of this Court in the case of
Dinesh Gulati (supra) has taken a diametrically different view than the one
taken by learned Single Judges of this Court in Avneesh Sood (supra) and
Shikha Bhatia (supra). The judgment in Dinesh Gulati (supra) is
reproduced hereinbelow:-
"1. The appellant is aggrieved by the order dated 04.04.2016
whereby he was issued show cause notice to answer why
contempt proceedings ought not to be proceeded with against
him for noncompliance of the order recording the joint
statement of the parties. The brief facts are that the appellant
had initiated proceedings for dissolution of marriage between
him and the respondent wife by HMA 545/ 2014. During the
pendency of those proceedings the parties stated before the
court that they had resolved their differences and they would
move for a mutual consent divorce under Section 13- B of the
Cont. Cas.(C) 772/2013 & Ors. Page 26 of 29
Hindu Marriage Act, 1956. Apparently, for one reason or the
other mutual consent divorce proceedings were not initiated. In
these circumstances, the appellant moved contempt proceedings
for initiating actions against the respondent wife. The contempt
petition was dismissed by the impugned order. At the same
time, the court initiated – of its own accord suo motu contempt
proceedings against the present appellant for non-compliance
of the order and the joint statement dated 22.07.2014.

2. The recourse to the contempt proceedings in the
circumstances of the present case as well as the orders passed
on 04.04.2016 and 22.07.2014 (order recording joint statement
of the parties) is baffling given that it completely neglects the
mutuality aspect as provided for under Section 13B. It is not
understandable how the court through its order initiated the
coercive process of contempt proceedings, foreclosed the
choice which the parties have by virtue of the mechanism under
Section 13B – to award mutual consent divorce in two stages.
To put it differently – through the impugned order, the parties’
right to step back at any stage stood negated. If the law permits
the parties to rethink and not proceed with mutual consent
divorce – a concept which is based upon mutuality, an
agreement to divorce cannot be enforced in a manner that is
sought to be done in the present case. It is settled law that even
if a compromise is embodied in an order, its essential
characteristics of being founded on a contract that casts upon
an enforceable contract, is not in any manner undermined. If
this essential reality is lost sight of, the parties may be faced
with dangerous consequences – unintended legal result i.e. a
residuary ground of divorce otherwise not thought of by
Parliament or made into a separate ground for dissolution of
marriage.

3. Having regard to the fact that the parties are unable to or do
not wish to proceed with the agreement dated 22.07.2014 for a
mutual consent divorce, the appropriate recourse in our
opinion would be to restore the original divorce petition HMA
545/2014 on the file of the case. The parties are directed to be
present before the concerned Family Judge on the date fixed.
Cont. Cas.(C) 772/2013 & Ors. Page 27 of 29
The court shall thereafter proceed with the main petition for
divorce referred by the appellant on its merits.

4. Appeal is allowed in the above terms. The pending
application also stands disposed of.‖
(emphasis supplied)

29. Keeping in view the aforesaid reasons, this Court has serious doubts
as to view taken by earlier Coordinate Benches in Avneesh Sood (supra)
and Shikha Bhatia (supra). Consequently, it deems it appropriate to refer
the matter to a Division Bench. This Court may mention that the decision
of this Court to refer the matter to a Division Bench is in conformity with
the decision of the Supreme Court in Sant Lal Gupta and Others Vs.
Modern Cooperative Group Housing Society Limited and Others, (2010)
13 SCC 336 wherein it has been held as under:-

―17. A coordinate Bench cannot comment upon the discretion
exercised or judgment rendered by another coordinate Bench of
the same court. The rule of precedent is binding for the reason
that there is a desire to secure uniformity and certainty in law.
Thus, in judicial administration precedents which enunciate the
rules of law form the foundation of the administration of justice
under our system. Therefore, it has always been insisted that the
decision of a coordinate Bench must be followed.
(Vide Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal
Patel [AIR 1968 SC 372], Sub-Committee of Judicial
Accountability v. Union of India[(1992) 4 SCC 97] and State of
Tripura v. Tripura Bar Assn. [(1998) 5 SCC 637 : 1998 SCC
(L&S) 1426] )

18. In Rajasthan Public Service Commission v. Harish Kumar
Purohit [(2003) 5 SCC 480 : 2003 SCC (L&S) 703] this Court
held that a Bench must follow the decision of a coordinate
Bench and take the same view as has been taken earlier. The
earlier decision of the coordinate Bench is binding upon any
Cont. Cas.(C) 772/2013 & Ors. Page 28 of 29
latter coordinate Bench deciding the same or similar issues. If
the latter Bench wants to take a different view than that taken
by the earlier Bench, the proper course is for it to refer the
matter to a larger Bench.‖
(emphasis supplied)

30. In the opinion of this Court, the following questions of law arise for
consideration by a division bench of this Court :-
A) Whether a party, which has under a settlement agreement decreed by
a Court undertaken to file a petition under Section 13B(1) or a motion
under Section 13B(2) of the Act, 1955 or both and has also undertaken to
appear before the said Court for obtaining divorce can be held liable for
contempt, if the said party fails to file or appear in the petition or motion or
both to obtain divorce in view of the option to reconsider/renege the
decision of taking divorce by mutual consent under Section 13B(2) of the
Act?

B) Whether by undertaking before a Court to file a second motion under
Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an
undertaking to a Court to that effect in a separate court proceeding, a party
waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes,
whether such right can be waived by a party under Section 13B(2) of the
Act, 1955?

C) Whether any guidelines are required to be followed by the Court
while recording the undertaking/agreement of the parties with respect to a
petition under Section 13B(1) or a motion under Section 13B(2) of the Act,
1955 or both for obtaining divorce?

D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia
Cont. Cas.(C) 772/2013 & Ors. Page 29 of 29
(supra) are good law in view of the doubts expressed by this Court in paras
19 to 28 and in view of the Division Bench judgment in Dinesh Gulati
(supra).

Accordingly, list the matters before Division Bench on 07th February,

2017 subject to orders of Hon’ble the Chief Justice.
MANMOHAN, J
JANUARY 09, 2017
js/rn

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