Monday, August 7, 2017

Annulment of Marriage on grounds impotency in India.

Annulment of Marriage  on grounds impotency in India.

the decision in G. v. G.(1) holding that a Court would be justified in annulling a marriage if it was found that the marriage had not been     and could not be consummated by the parties thereto, though no reason            for nonconsummation was manifest or apparent.In that decision both the husband and the wife were perfectly normal      and each charged the other as being responsible for non-consummation of the marriage. The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that "quoad hunc et quoad                hunc, these people cannot consummate the marriage."

Section 12(1) in The Hindu Marriage Act, 1955
(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—
12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

In appeal I am of the same opinion as the learned Subordirite Judge on both these issues and here are my reasons.
 'Point I.' Impotence as a ground for dissolution of marriage is a medico-legal problem and I shall consider it now under both these heads.
 Impotence is defined as lack of ability to perform sexual act and sterility is defined as lack of ability to procreate children. Questions of impotence and sterility arise when divorce is sought (a) because, marriage cannot be consummated (i.e., one of the parties is incapable of complete sexual intercourse), (b) if incapacity for consummation can-not be surgically remedied, or, the defective party is unwilling to submit to a surgical operation; or (c) if the incapacity existed before marriage. (Sterility, by itself, offers no ground for divorce). Impotence is attributed to injury to head, neck, or loins.
If a marriage is once consummated; nullity cannot be given on ground of subsequent impotency. Impotency must be present at time "Of marriage and suit: Kishore Sahu v. Mrs. Snehprabha Sahu, AIR 1943Nag 185 (SB) (L).
Proof of impotence, that is physical unfitness for consummation, must be proved or there must be facts from which this can be inferred; Edward Charles Dawson v. Matty Dawson, AIR 1916 Mad 675 (2) ,(FB) (M). Non attainment of puberty by a woman is no ground as the fact does not in any manner preclude the consummation of marriage: 29 Mad LJ 183: (AIR 1916 Mad 675 (2)) (M). Loathsome and incurable syphilis of wife, resulting in her incapacity to consummate marriage entitles husband to a decree for nullity on- ground of her impotency: Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 464 (N); E. A. Wylie V. Mrs. R. Section Wylie, AIR 1930 Oudh 83 (O), Syphilis to amount to impotency must be incurable, even though the disease is not an absolute'bar to compulation. But where woman is discharged from hospitals as cured, with a negative blood test, syphilis cannot be said to be incurable and the marriage cannot be dissolved. But see AIR 1930 Oudh 83 (O).


Madras High Court
T. Rangaswami vs T. Aravindammal
Equivalent citations: AIR 1957 Mad 243
JUDGMENT Ramaswami, J.
1. This is an appeal directed against the order and decree of the learned Subordinate Judge of Tiruchirapalli in O. P. No. 186 of 1952.
(1a) This O. P. was filed under Section 5 of the Madras Hindu (Bigamy Prevention and Divorce) Act VI of 1949 Clause (h) which provides that either party to a marriage solemnised before or after the commencement of this Act..... may pray that the marriage be dissolved on the ground that the other party was impotent at the time of marriage and continued to be so until the presentation of the petition. This Act has been repealed and replaced by the Hindu Marriage Act 1955, Section 12(a). The Clause (h) of Section 5 of Act VI of 1949 is identical in language with Clause (a) if Section 12 of the Hindu Marriage Act 1955. Therefore no vested right has been taken away and no new right has accrued.
2. The petitioner T. Rangaswami is seeking divorce' on the ground of alleged impotence and alleged desertion. He married the respondent Ara-vindammal, who is his own niece on 13-9-1945. After living for sometime together, the respondent has been living before the presentation of the petition with her parents for a considerable time. The case for the respondent is that she is not as alleged either on the date of the marriage or On the date of the petition and that she is not the deserting party and that on the other hand she has been driven out of the house and that her husband wants to get rid of her in order to re-marry.
In the course of the enquiry this respondent produced a certificate issued by Srimati G. Poriniah, Lady Doctor, regarding her potence and this Lady Doctor has been examined also as R. W. 3. The medical evidence puts it beyond doubt that this respondent is suffering neither from organic nor atonic impotence permanent or temporary. This evidence is corroborated by the respondent examined as R. W. 1 and her father examined as R. W. 2.
This was not in any way displaced by the evidence of the petitioner examined as P. W. 1 and his mother as P. W. 3. Before the learned Subordinate Judge the issue of desertion was not pressed with any seriousness as noted by him in paragraph 6 of his order and in fact there were no materials to make out the ground of desertion put forward as a second string to the bow by the petitioner. This petition was therefore dismissed with costs. Hence this appeal,
3. In appeal I am of the same opinion as the learned Subordirite Judge on both these issues and here are my reasons.
4. 'Point I.' Impotence as a ground for dissolution of marriage is a medico-legal problem and I shall consider it now under both these heads.
5. Impotence is defined as lack of ability to perform sexual act and sterility is defined as lack of ability to procreate children. Questions of impotence and sterility arise when divorce is sought (a) because, marriage cannot be consummated (i.e., one of the parties is incapable of complete sexual intercourse), (b) if incapacity for consummation can-not be surgically remedied, or, the defective party is unwilling to submit to a surgical operation; or (c) if the incapacity existed before marriage. (Sterility, by itself, offers no ground for divorce). Impotence is attributed to injury to head, neck, or loins.
6. Potence in case of males means power of erection of the male organ 'plus' discharge of healthy semen containing living spermatozoa and in the case of females means (1) development of external and internal genitals and (2) ovulation and menstruation.
7. Causes of impotence: (*Apply to males only. --*Apply to females only; those unmarked, apply to both sexes):--
1. Organic: 1. 'Nervous Lesions*': Diseases of, or injury to, brain or cord. 2. 'Malformation or absence of parts* male organ may be absent, non-developed, ill-developed, or two or more in number: adherent to scrotum or abdomen; fibrous or cartilaginous; hypospadias; congenital phimosis, anorchidisni, cry-ptorchidism; diseases of or accidents to or operations on the male organ, testicles or ducts (perinaeum).
*Atersia or narrowness of vulva, absence of uterus, tough hymen or vagina. (Though according to law, a boy under 14 is impotent, in fact, he is not always so). Also -- Obesity, 3. 'Inflammations or Cicatricial' contractions*. 'Vaginismus'. Krauroses vulvae; internal piles, tight stricture. 4. Tumorous*:--Elephantiasis; 'hernia', big hydrocele.
"Psychial* 1. Absence of voluptuous thoughts. 2. 'Repugnance' towards individuals, 'fear', 'timidity', 'excessive passion'. (For this reason, a man may be potent towards one woman and impotent towards another.
Atonic.* (Therefore, often temporary impotence). 1. 'From general diseases' and 'conditions': -- Old age, too frequent coitus, wasting diseases (diabetes); anaemia; uraemia, cholaema, rhumatism, diptheria, Heart diseases, chronic nephrities, acute fevers, parotitis. 2, 'From Over-indulgence in drugs': lead, potassium Iodide, opium, cannabis indica and other narcotics; alcohol, tobacco, thyroidin. 3. 'From chronic irritation of genital passages -- due to gonorrhoea, stricture, masturbation vaginismus.
8. This information can be gathered from standard text-books, English and Indian, on the subject like Glaister's Medical Jurisprudence and Toxicology (1953), 9th Edn., Chapter XII, p. 358 ff; Taylor on Sexual Disorders (2nd Edn,), Chapter VIII, page 98ff, (atonic); Organic impotence, Chapter IX, p. 105 ff; Forel's Sexual question and Psychic Impotence, pp. 85, 219; Mody's Medical Jurisprudence and Toxicology (12th Edn.), Chapter XIII, p. 284ff; Ray's Medical Jurisprudence and Treatment of poisoning (6th Edn.) page 23lff; Kanmth's Medical Jurisprudence. (MLJ publication.)
9. In regard to the legal aspect it would be interesting to examine analogous laws. Under the Hindu Law concerning impotence as affecting the status and continuance of marriage, the following extracts from the standard commentaries are sufficient;
Mayne's Hindu Law (11th Edition), para 105 (page 143):
"As the great and primary object of marriage is the procuring of the male issue, physical capacity is an essential requisite so long as mere selection of a bridegroom is concerned; but a marriage with an eunuch is not an absolute nullity.....It has now been held by the High Courts of Madras and Allahabad 'in decisions of questionable correctness the under the Hindu Law an impotent person can be lawfully married" Amirthammal v. Vallimayil Am-mal, ILR 1942 Mad 807: (AIR 1942 Mad 693) (FB) (A); Bhagavati Saran Singh v. Parameshwari Nandan Singh, ILR 1942 All 518: (AIR 1942 All 267 (2)) (B); Kaura Devi v. Indra Devi, ILR 1943 All 703; (AIR 1943 All 310) (C).
The views expressed by the learned Editor of the 10th Edition of Mayne's Hindu Law have been dissented from in the Madras and Allahabad decisions, 'Mulla's Hindu Law (llth Edition) page 537:' "It has been held by the Calcutta High Court that the marriage of a female with a male who is impotent and is not able to consummate the marriage is nullity" Ratan Moni v. Nagendra Narain, 48 Cal WN 689: (AIR 1949 Cal 404) (D).
'Raghavachariar's Hindu Law' (3rd Edition) page 51:
"Marriage does not exist solely for sexual intercourse and a marriage with an impotent person cannot be held invalid though one of the chief objects of marriage, viz., begetting of children is defeated thereby". Purushotam Das v. Bai Mani, ILR 21 Bom 610 (E). See also Kanahi Ram v. Biddya Ram, ILR 1 All 549 (F). See contra 48 Cal WN 689: (AIR 1949 Cal 404) (D).
10. 'Muslim Law:' Under Muslim taw impo-tency as a ground for divorce was available even before the passing of the Dissolution of Muslim Marriages Act VIII of 1939. Under the Act which has accepted all principles of Muslim Law with slight changes in the. procedure and conditions, a Mahomedan wife --- in the converse case of the husband he being simply left to his -ordinary power of divorce is entitled to seek divorce on the ground of impotency of the husband subject to the following conditions:
(i) that the impotence existed at the time of marriage; Feroze-din v. Mt Wazir Eegam, AIR 1926 Lah 218 (G); Mt. Altafan v. Ibrahim, AIR 1924 All 116 (H) confirmed in Mohamed Ibrahim v. Altafan, AIR 1925 All 24 (I).
(ii) that the wife had no knowledge of it at the time of marriage; (AIR 1924 All 116 (H) supra).
(iii) that the defect had not since been removed, Badardim v. Mt. Allah Rakhi, AIR 1937 Lah 383 (J).
According to the Act VIII of 1939 the material date is the date of marriage and not the date of consummation. It would mean that if a husband is potent at the time of marriage but becomes impotent be fore the date of consummation the wife will not be entitled to Judicial divorce. It was necessary even before the Act to prove that the impotency existed all through the period of marriage and remained incured since the time of marriage, (Pir Bux v. Muha mmad Unnissa, AIR 1927 All 100 01); AIR 1937 Lah 383 (J);
An impotent person is defined by the Mahomedan Law as one who is unable to have a connection with a woman, though he has the natural organs; and a person who is able to have connection with ah enjoyed woman, but not with a virgin, or with some women but not with others whether the disability be by reason of disease, or weakness or original constitution, or advanced age or enchantment, is still to be accounted impotent with respect to her with whom he cannot have connection. Bailie's Mahomedan Law, Vol. I, page 347; AIR 1924 All 116 (H). This definition seems to hold good under the Act. Under Shia Law the wife was not entitled to separation if the impotency was only special in her case or what is called 'ad hoc' in English Law. The Act does not make any difference and it appears provisions of the Act would be applicable to all schools of Muslim Law.
A man, may, however, be nominally or temporarily potent due for instance to the use of certain medical drugs or other cause; or he may be potent as regards some women and not potent as regards his wife: AIR 1924 All 116 (H). For detailed exposition (see R. B. Sethi Muslim marriage and its dissolution (1955) p. 97 and foll; R. K. Wilson Anglo-Muhammadan Law Fifth Edn. p. 145).
11. Section 30 of the Parsi Marriage and Divorce Act III of 1936, which has not amended section 28 of Act XV of 1865, runs as follows:
"In any case in which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void". It will be noticed that under this Act impotency is not a ground for divorce but for declaring the marriage null and void (See Parsi Marriage and Divorce Act by Wadia and Katpitia, 1939 Edn. page 60).
12. Under the Special Marriage Act, 1954, impotency is not a ground for divorce, but only a ground for nullity of marriage. Section 24 states:
"(1) Any marriage solemnized under this Act shall be null and void and may be declared by a decree of nullity; -
(2) If the respondent was impotent at the time of the institution of the suit". (see page 104 of D. H. Chaudhari's Special Marriage Act, 1954).
13. Under the Hindu Marriage Act, 1955, also, impotency is not a ground for divorce but a ground for nullity. Section 12 states:
"Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds namely--
(a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; ......
(See Commentaries of Hindu Marriage Act XXV of 1955 by K. P. Saxena, page 159).
14. Under the Indian Divorce Act IV of 1869, impotency is not a ground for divorce but a ground for nullity of marriage under sections 18 and 19 of that Act. -
Section 18 states:
"Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void." -
Section 19 states:
"Such decree may be made on any of the following grounds:
1. that the respondent was impotent at the time of the marriage and at that time of the institution of the suit;......"
15. The following case-law under Section 19 of the said Act is apposite:
Capacity for sexual intercourse must exist at-least 'in posse' at the time of marriage. Permanent and incurable impotency such as to render complete and natural sexual intercourse between parties practically impossible is a ground for annulment of marriage. Impotency means physical and incurable incapacity to consummate marriage. Incapacity may result from loathsome and incurable syphilis: 'Birendra Kumar v. Hemlata Biswas', AIR 1921 Cal 459 (K).
If a marriage is once consummated; nullity cannot be given on ground of subsequent impotency. Impotency must be present at time "Of marriage and suit: Kishore Sahu v. Mrs. Snehprabha Sahu, AIR 1943Nag 185 (SB) (L).
Proof of impotence, that is physical unfitness for consummation, must be proved or there must be facts from which this can be inferred; Edward Charles Dawson v. Matty Dawson, AIR 1916 Mad 675 (2) ,(FB) (M). Non attainment of puberty by a woman is no ground as the fact does not in any manner preclude the consummation of marriage: 29 Mad LJ 183: (AIR 1916 Mad 675 (2)) (M). Loathsome and incurable syphilis of wife, resulting in her incapacity to consummate marriage entitles husband to a decree for nullity on- ground of her impotency: Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 464 (N); E. A. Wylie V. Mrs. R. Section Wylie, AIR 1930 Oudh 83 (O), Syphilis to amount to impotency must be incurable, even though the disease is not an absolute'bar to compulation. But where woman is discharged from hospitals as cured, with a negative blood test, syphilis cannot be said to be incurable and the marriage cannot be dissolved. But see AIR 1930 Oudh 83 (O).
Wife's invincible repugnance to act of coitus rendering her incapable of sexual intercourse entitles husband for declaration of nullity of his marriage, Burden of proof is on time and is increased by delay on his part. But delay by itself is not an absolute bar unless the respondent has thereby in any way suffered: Bull v. Mrs. Bull, AIR 1938 Cal 684 (P) When husband is impotent as regards his wife only, decree for nullity can be granted H. v. H., AIR 1928 Bom 279 (Q); Wilson v. Wilson, AIR 1931 Lah 245 (R); AIR 1943 Nag 185 (L); (Attempt to consummate, reducing wife to state of hysteria, making consummation impossible). See also Section v. B. 16 Bom 639 (S):
No presumption can be drawn from the fact that the wife was unwilling to live with husband that she was impotent; Emmanuel Singh v. Kamal Saraswati, AIR 1934 Pat 870 (1) (FB) (T).
Courts have wide discretion in ordering physical examination of the party suffering from the disease and always do so, subject to such conditions as will afford protection from violence to natural delicacy and sensibility. Where a party refuses to attend for medical inspection, the court may probably draw an unfavourable inference: AIR 1921 Cal 459 (K); H. v. H., 30 Bom LR 523 at p. 527: (AIR 1928 Bom 279 at p. 280) (Q); Intract v. Intract, (1933) P 190 (U), under the (U.K. ) matrimonial causes Rules (of Rule 24)there is specific provision for medical inspection).
In regard to the nomination of doctors and their certificates -- See Agnes Sumathi Ammal v. D. Paul, AIR 1936 Mad 324: 70 Mad LJ 32 (FB) (V), Coral Indira Gonsalves v. J. F. Iswariah, (W).
The burden of proof is heavy on the petitioner as it involves a slur on the manhood or womanhood of the other party: 29 Mad LJ 183: 30 Ind Gas 565: (AIR 1916 Mad 675 (2)) (FB) (M). Impotency means incapacity to consummate the marriage and that therefore in the circumstances the respondent must be deemed to be impotent so far as the petitioner was concerned at the time of the marriage and at the time of the institution of the suit and the marriage between the petitioner and the respondent must be declared mill and void: Kanthy Balavendran v. Section Harry; (FB) (X); 30 Bom LR 523 at p. 527: (AIR 1928 Bom 279 at p. 280) (Q); ILR 16 Bom 639 (S) (A case under Parsi Divorce and Marriage Act): AIR 1931 Lah 245 (R); AIR 1943 Nag 185 (FB) (L); Ramesh v. Kusum, AIR 1949 Bom 1: ILR (1949) Bom 190: 50 Bom LR 426 (Y) (See AIR Manual Civil and Criminal Vol. IV (1947) p. 3488 and foil, and Manchanda The Law and Practice of Divorce (Eastern Law House (1945) p. 206 and foil. In regard, to both these very useful publications, a new edition is long over-due. (16) In England impotence has always been a ground for nullity only but not a ground for divorce. The law on the subject has been summed up by Tolstoy Jin his "Law and Practice of Divorce and Matrimonial Causes" (Second Edition) at page 94 and following as follows:
"Impotence is inability to consummate the marriage and to be a ground for nullity, such inability roust exist at the time of marriage (Note one) and continue to exist at the date of the petition. Sterility unaccompanied by impotence is no ground for nullity. (Note Two) if he or she be otherwise 'apta viro'.
At one time it was necessary to wait three years before asking for relief and it was the practice of the Court to adjourn the case to give the parties an opportunity for further attempts. If this failed, then impotence was presumed. This is no longer the practice and there is now no minimum period to get over prior to the presenting a petition for nullity.
To consummate a marriage, ordinary and complete sexual intercourse must take place. Partial intercourse or intercourse which, is so imperfect as scarcely to be natural is insufficient (Note Three). In determining whether intercourse is ordinary and complete the word 'consummate' must be construed as it is understood in common parlance and in the light of social conditions known to exist. (Note Four).
The inability to consummate may be due to a physical defect which is incurable, or to one which is curable but which the respondent refuses to have cured, (Note Five) or to mental or moral disability, (Note Six). In the latter case, it sometimes happens that a' person is capable of having intercourse, but incapable of performing it with the particular individual, i.e., impotent 'quoad hunc' or 'quoad hanc'. This is sufficient to found a decree of nullity, as what matters is ability to have intercourse in general (Note seven).
Provided there are no circumstances which constitute a bar to relief, e.g., knowledge of the defect at the date of marriage, the impotent party can himself petition for nullity and his right to do so is not conditional on repudiation of the marriage by the other party.
Generally speaking, a spouse who does not attempt or fails in his attempts at sexual intercourse will have the burden of proving that he or she is capable and the burden is heavier in the case of a, man. (Note eight). The Matrimonial Causes Rules 1950, Rule 24 provides for a medical inspection of the parties in the case of nullity for impotence or wilful refusal to consummate. (Rule 24), but the Court may grant a decree though the respondent refused to submit to the inspection (Note nine). In fact, the respondent's refusal may incline the court to draw the inference that the petitioner's allegations are true.
The birth of a child is not conclusive evidence that the marriage has been consummated as it is well established that fecundation 'ab extra' can take place (Note ten).
In a proper case the court will order a petitioner who alleges that the respondent is incapable of consummating the marriage to give particulars of the nature of the incapacity alleged. (Note Eleven.) Evidence of non-access is admissible, if given in nullity suits for incapacity."
(Note one) Brown v. Brown, (1828) 1 Hag ECC 523 (Z), (Respondent becoming impotent subsequently is no ground for nullity) Napier v. Napier, (otherwise Goodban) 1915 P 184 at p. 190 (Z1). 'Note two: L. v. L. (1922) 38 TLR 697 (Z2); so that voluntary sterilisation before marriage is no ground for relief: Baxter v. Baxter, (1943) AC 274 (Z3); overruling J. v. J.,(1947) P158 (Z4); R.v. R. (otherwise F) 1952-1 All ER 1194 (Z5); (penetration but no ejaculation). But see also Grimes v. Grimes, (1948) P. 323 (Z6); White v. White, (1948) P. 330 (Z7).
'Note Three': D. v. A., (1845) 1 Rob ECC 279 (Z8); Snowman v. Snowman, (1934) P: 186 (Z9); Clarke v. Clarke, (1943) 112 LJ P. 1 (Z10); B. v. B., (1955) P. 42 (Z11); R. v. R., (1952) 1 All ER 1194 (Z12). 'Note Four': (1948) AC 274 (Z3).
'Note Five': L. v. L. (1882) 7 PD 16 (Z13); G. v. G., (1908) 25 TLR 328 (Z14); S. v. S. (otherwise C) (1954) 3 All ER 736 (Z15);
'Note Six': G. v. G., (1871) 2 P and D 287 (Z16) excessive sensibility); P. v. L., (1873) 3 PD 73n (Z17) (hysteria); 1952-1 All ER 1194 (Z5); (1954) 3 AH ER 736 (Z15); Lewis v. Hayward, (1866) 35 LJ P and M 105 (Z18); G. v, G. (1924) AC 349 (Z19).
'Note Seven': (1924) AC 349 (Z19). 'Note eight': Kay v. Kay., (1934) 152 LT 264 (Z20); (1866) 35 LJ P and M 105 (Z18). 'Note Nine': (1933) P. 190 (U) where the authorities are dissented. (1908) 25 TLR 328 (Z14); W. v. W., (1912) P. 78 (Z2J); S. v. S., (1908) 24 TLR 253 (Z22); B. v. B., (1901) P. 39 (Z23); W. v. S., (1905) P. 231 (Z24); Section v. B., (1905) 21 TLR 219 (Z26). Note Ten: Clarke v. Clarke, (1943) 112 LJ P. 41 (Z26); (Child born though marriage not consummated) (1934) P. 186 (Z9); L. v. L., (1949) P. 211 (Z27); (artificial insemination).

'Note Eleven': Wise, v. Wise, (1944) P. 56 (Z28). 'Note Twelve': Farnham v. Farnham, (1937) P. 49 (Z29); Burgess v. Burgess, (1937) P 60 (Z30). For detailed discussion in standard commentaries see Vol. 12 Halsbury's Laws of England (1955); Simmonds Edn. Para 426 and Foll, at page 228 and foll; Latery on Divorce Fourteenth Edn. (1952) p. 194 and foll. Rayden on Divorce, Fifth Edn. (1949) p. 70 & foll. Phillips practice of the Divorce Division Fourth Edn. (1951) p. 39 and foil; Jackson The Law relating to the Formation and Annulment of Marriage pp. 69-73 and 103-108 and 203-315 Etc. (1951).
17. In America unless as in many states it is made so by Statute, ante-nuptial impotency is not a ground for divorce. The American law on the subject is found in two authoritative publications. In 19 Corpus Juris, page 40, Section 71, it is stated thus:
'Impotency is an incurable incapacity that admits neither copulation nor procreation, the copulation contemplated being copula vera and not partial, imperfect, or unnatural. It must be incurable and render complete sexual intercourse 'practically impossible. Thus absence of conceptive power or barrenness does not constitute impotency if there is complete power of copulation." ill. Griffeth v. Griffeth, 162 111 368 (Z31), J. G. v. H. G. (1870) 33 Md. 401 (Z32); Minu Payne v. Payne, 46 Minn. 467 (Z33); PaLuckenbach v. Luckenbach, 39 Pa Co 520 (234); Tenn Williams v. Williams, 1 Tenn. Civ A 538 (Z35); Alia - Anonymous 35 AL A 226 (236); Berdolt v. Berdolt, 56 Nebr. 792 (Z37); S. v. S., 1922 Mass 194 (Z 38); Grosvenor v. Grosvenor,' 194 111 652 (Z39).
17a. American Jurisprudence, Sections 140 and 141, has the following to say:
"Section 140. Capability of consummation is an implied term in every marriage contract. It is so essential that on discovery of the entire incapacity of one of the parties for that duty of wedlock, the other may have a decree annulling the marriage. Underthe canaon law as administered in England, impotency existing at the time of the marriage was ground a divorce a 'vinculo matrimonii". In this country in the absence of a statute so providing, impotency on the part of either spouse is not a ground for divorce, as the grounds for divorce are only those specified by the statutes.

Also, from the facts that impotence is canonical disability cognizable only the ecclesiastical courts and that we have no such courts, it follows and it is generally so held, that in the absence of statute on the subject, our courts have no jurisdiction to grant a divorce on this ground. It is well settled both in England and in this country that impotency does not render the marriage void but merely voidable, and the marriage is regarded as valid unless avoided by some court having jurisdiction during the life of both parties.
At the present time statutes exist in the several States either authorizing divorces for impotency or conferring jurisdiction on some court to annul the marriage therefor".
"Section 141....it is well settled that if, by reason of malformation or organic defect existing at the time of marriage, there cannot be natural and perfect coition -- vera copula -- between the gardes, the case comes within the legal definition of impotency. If, however, there is a probability of capacity to accomplish the sexual act, no decree will be granted. (1870), 33 Md. 401-3 Am Ren & 183 (Z32).
The origin of the incapacity is immaterial. It may proceed from malformation of the sexual parts or from absence of necessary organs. On the part of the husband, it may arise from the excessive abnormal proportions of his sexual organs or from genital weakness produced by self-abuse. On the part of the wife, it seems not essential that there be any structural defect. Excessive sensibility rendering sexual intercourse practically impossible on account of the pain it would inflict or an invincible re-pugnance to sexual intercourse resulting in a paralysis of the will may be sufficient: S. v. S., 192 Mass 194 (Z38).
Universal impotency does not seem to be essential. Impotency quoad hoc, as it is termed, is sufficient; that is, if the defendant is entirely incapable of sexual intercourse with the plaintiff, though not with other persons, if such a thing is possible, a decree of nullity may be granted. This view is said to be reasonable, for the marital relation is with the plaintiff; and if the defendant is incapable of consummation with the plaintiff, the incomplete con-tract ought to be dissolved, whatever may be the defendant's powers with respect to other persons. On principal, therefore, relative and not absolute Impotency would seem to be sufficient.....": Vandonberg v. Vandonberg, 197 N Y S 641 (Z40).
18. To sum up, a marriage will be avoided or dissolved on the ground of impotence, on the petition of either party if it is proved that at the time of the marriage one of the parties is and continues to be Incapable of effecting or permitting its consummation either of some structural defect in the organs of generation which is incurable and renders complete sexual intercourse impracticable or of some incurable mental or moral disability resulting in the man inability to consummate the marriage with the particular woman or in the woman to an invincible repugnance to the act of consummation with the particular man.
19.Though in practice the terms, "declare the marriage null and void" and "dissolution of marriage" are used interchangeably, in strict reality, it is only voidable and void and non-existent marriages which can be declared null and void, and the contract of marriage made void ab initio; in regard to a valid marriage, it can only be annulled or dissolved provided one or more-specified grounds for divorce have been made out.
While in the case of 3 void marriage the decree merely 'declares' status, in the case of a voidable marriage the decree changes status. The children of a void marriage for instance unless saved by legislation (e.g., Section 26, Special Marriage Act, 1954) are never legitimate (Jackson ibid 61), But there is the further distinction between void and voidable marriages in that in the case of a voidable marriage till it is annulled by a decree parties are husband and wife and children begotten of such marriages are legitimate and secondly whereas in the case of a voidable marriage it can be avoided only on a presentation of a petition by either party thereto, a marriage which is null and void may be declared to be so even at the instance of a stranger whose interest are affected by such a marriage.
20.In the case of dissolution of marriage on the ground of impotence, the following issues as pointed out in Chandhr's useful publication on the Special Marriage Act, p. 108, arise for consideration:
(a) Was the respondent impotent at the time of the marriage?
(b) If so, what was the nature of impotency?
(c) Was she (or he) generally impotent or only impotent vis-a-vis. the petitioner?'
(d) What was the cause    or what were the causes of this impotency?
2. (a) Was the respondent impotent on the date when the suit or petition was instituted?
(b) What was the nature of the impotency?
(c) Was she (or he) generally impotent or only impotent vis-a-vis the petitioner?
(d) What was the cause    or what    were the causes of such impotency?
3. Was the marriage ever consummated, either at the time of the marriage or thereafter?
4. Is there no collusion between the petitioner and the respondent?
5. Has the petition been brought in good faith
and has there been full, free and frank disclosures
of all material facts?
Besides these, additional issues arising out of the pleadings will have to be framed.
21.In regard to proof of impotency, the rules of evidence are not different in the case of impotency than elsewhere. Impotency that is physical unfit-ness for consummation, must be proved or there must be facts from which this can be inferred. The proof must be, as used to be expressed in the Ecdeciastical courts in England not suspicio probablis but has to be Vehetnens proesumptio.
22.There is no minimum standard of proof necessary. Even" uncorroborated testimony of the petitioner is sufficient if it can be believed. In cases of this nature, corrboration can only be obtained from the evidence 'of the other party to the marriage. Under Section 120 of the Evidence Act, the other party to the marriage is a competent witness.
23. The conduct of the parties subsequent to the marriage would be important. Did they peak lot the impotency to anybody? Was it mentioned to any friend or relation or to their parents? If, not, why not? Would it be natural not to do so? Or was there no opportunity? It would not be natural for everybody to speak these matters to another. A reserved or shy or a reticent person would not. On the other hand, other types almost certainly would. Whether the parties to the case fall within the one class or the other, it is for the trial, judge to discover: (AIR 1943 Nag 185) (L).
24. Impotency may be established by medical examination of the parties. The doctor who examined either party or both the parties, may be examined as witness.
Where the respondent relies on a doctor's certificate that ho was able to have sexual intercourse and was potent that day, the certificate must be strictly proved by examining the doctor who issued it. Certificates like these, do not prove themselves. The doctor giving the certificate has to state what tests he carried out to arrive at his conclusions and must stand cross-examination and convince the Court that his conclusion about the potency is correct: (W).
25. There is of course need of caution in dealing with the evidence of impotency to avoid such after events as in some of the old cases happened, when the person pronounced impotent had issue in a later marriage: (ILR 16 Bom 639) (S)
26. No presumption can be drawn from the fact that the wife was unwilling to live with her husband that she was impotent: (AIR 1934 Pat 67a (1) (FB) (T).
27. Bearing these principles in mind if we examine the facts of this case, we find that neither organic impotency nor atonic impotency quoad this petitioner has been made out. Therefore this issue has been rightly decided by the learned Subordinate Judge.
28. Point 2: The five essential factors which must be establsihed to succeed in a petition for divorce on the ground of desertion are as stated in Phillip's Practice of the Divorce Division Fourth Edn. (1951) P-19 and foll, that
(a) the spouses must have parted or terminated all joint life;
(b) The deserting spouse must have an intention to desert the other spouse;
(c) The deserted spouse must not have agreed to the separation;
(d) the desertion must have been without cause;
(e) this State of affairs must have continued for at least three years immediately preceding the presentation of the petition.
29. In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserting spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial home, In such cases the actual abandoning of the matrimonial home is not the act of the person against whom the allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behaviour of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has arisen in these circumstances are sometimes called "constructive" desertions'.
30. This desertion may be terminated in the following ways;
(i) By resumption of cohabitation between the spouses.
(ii) By the desertion becoming a separation of the spouses by agreement.
(iii) By the deserted spouse refusing a genuine offer made by the deserting spouse to resume cohabitation.
(iv) By the deserting spouse becoming insane.
31. Bearing these principles in mind if we examine the facts of this case, we find that though the wife is living now in her parents house, the deserting spouse must be deemed to be the husband. The wife who is stated to be a sturdy and healthy person and who even before marriage is closely related to the husband as his niece and who comes from a community where re-marriage is practically unknown end who would have had no possible motive to live as a grass-widow, is extremely unlikely to persist in living separately but for the fact that her husband is refusing all genuine efforts by her to resume cohabitation.
On the other hand, as pointed out by the learned Subordinate Judge, who had an opportunity of seeing the husband and the wife in the box, all the evidence and the circumstances pointed out to the anxiety of the husband to get rid of the wife once for all and to re-marry. Therefore, the desertion alleged has not been made out. This issue also has teen rightly found by the learned Subordinate Judge against the petitioner.
32. In the result, this appeal is dismissed and on account of the fact that the wife has not appeared in this court, without costs.


33. I must express my appreciation of the presentation of the case by Mr. K. Raman, who on account of the fact that the respondent was not appearing in this court, took the trouble to place the entire evidence and case, law before me, so that the respondent's case may not suffer by default.

Thursday, March 9, 2017

No decree for divorce on one isolated incident can be passed.

The Hon’ble Supreme Court held that :-
“We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.”
We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.
In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.
————————————————————————————
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.7114-7115 OF 2014
Suman Singh ….Appellant(s)
VERSUS
Sanjay Singh …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.

1) These appeals are filed by the appellant (wife) against the final
judgment and order dated 23.05.2013 passed by the High Court of Delhi at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013 by which the
High Court dismissed the appeals filed by the appellant and confirmed the
judgment dated 14.12.2010 of the Principal Judge, Family Courts, Rohini
which had granted decree for dissolution of marriage in favour of the
respondent (husband) and, in consequence, also affirmed the order
dismissing the petition filed by the appellant (wife) for restitution of
conjugal rights.

2) Facts, in brief, to appreciate the controversy involved in the
appeals need mention infra.

3) The marriage between the appellant and the respondent was solemnized
on 26.02.1999 at Delhi as per the Hindu rites. The respondent-husband is
working as “Caretaker” in the Government of NCT of Delhi whereas the
appellant is a housewife. Out of this wedlock, one daughter was born on
15.06.2002 and the second daughter was born on 10.02.2006. Both daughters
are living with the appellant.

4) On 11.07.2010, the respondent (husband) filed a petition for
dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as “The Act”) in the Family Courts, Rohini, Delhi
against the appellant (wife). The respondent sought decree for dissolution
of marriage essentially on the ground of “cruelty”.

5) In substance, the respondent, in his petition, pleaded 9 instances
which, according to him, constituted “cruelty” within the meaning of
Section 13(1)(i-a) of the Act entitling him to claim dissolution of
marriage against the appellant.

6) The first ground of cruelty was related to wife’s behavior on the
next day of marriage, i.e., 27.02.1999. It was alleged that the appellant
came out of the bedroom in night dress and that too late when the close
relatives of the respondent were sitting in the house. It was alleged that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)

7) The second ground of cruelty was again about the appellant’s behavior
with the respondent on the eve of New Year. However, the year was not
mentioned. According to the respondent, he agreed to celebrate the new
year with the appellant on her parental house as the parents of the
appellant gave repeated calls. After reaching her parental house, most of
the time the appellant was busy with her family members and left him alone
in the drawing room. Even at the time of dinner, the family members of the
appellant did not behave properly. (Para 10).

8) The third ground of cruelty was that the appellant did not show any
inclination or enthusiasm to attend any important family function or
festivals at the respondent’s house whenever held. However, no details were
given about the date and the function held. The allegations are general in
nature (Para 11).

9) The fourth ground of cruelty was again about the indecent behavior of
the appellant towards the respondent’s family members. However, no details
were pleaded except making general averments (Para 12).

10) The fifth ground of cruelty was in relation to an incident which,
according to the respondent, occurred in July 1999. It was alleged that the
appellant, on that day, insisted that the couple should live separately
from the respondent’s parents (Para 13).

11) The sixth ground of cruelty was again general with no details. It was
alleged that the appellant was not interested in doing any household work
nor was interested in preparing meals and used to insist the respondent to
have his lunch from outside. (Para 14)

12) The seventh ground of cruelty was in relation to one incident which,
according to the respondent, occurred on Diwali day in the year 2000. It
was again about the behavior of the appellant with the family members of
the respondent which, according to the respondent, was rude (Para 16).
13) The eighth ground of cruelty was in relation to one isolated incident
which, according to the respondent, occurred on 15.04.2001. It was again
about the behavior of the appellant with the friends of the respondent who
had come to the respondent’s house. According to the respondent, the family
members did not like it (Para 17).

14) The ninth ground of cruelty was that one day in year 2010, the
appellant visited the respondent’s office and misbehaved with the
respondent in the presence of other officials (Para 27).

15) The respondent also alleged some instances in the petition. They,
however, again essentially relate to the appellant’s behaviour with the
respondent and his family members.

16) The appellant filed her written statement and denied these
allegations. The appellant also applied for restitution of conjugal rights
against the respondent in the same proceedings by filing petition under
Section 9 of the Act and inter alia alleged in her petition that it was the
respondent who has withdrawn from her company without there being a
reasonable cause. She also while denying the case set up by the respondent
justified her case for restitution of conjugal rights.

17) The Trial Court framed the following issues on the basis of pleadings
in the case:

Whether after solemnization of marriage, the Respondent has
treated the Petitioner with cruelty? OPP

Whether the Petitioner is entitled to the decree of
divorce as prayed? OPP

3. Relief
The following issues were framed based on the pleadings in the petition
under Section 9 of the Act:
Whether the Petitioner is entitled to the restitution of conjugal rights as
prayed? OPP
Relief
18) Parties adduced the evidence. By order dated 14.12.2012, the Family
Court allowed the petition filed by the respondent. It was held that the
grounds alleged by the respondent amounted to mental cruelty within the
meaning of Section 13(1)(ia) of the Act and the same having been proved by
the respondent, he was entitled to claim a decree for dissolution of
marriage against the appellant. Accordingly, the Trial Court granted decree
for dissolution of marriage in favour of the respondent and dissolved the
marriage. Since the decree for dissolution of marriage was passed against
the appellant, the petition filed by the appellant against the respondent
seeking restitution of conjugal rights was dismissed.

19) The appellant, felt aggrieved by the aforesaid order, filed first
appeals before the High Court. In appeals, the question was whether the
Trial Court was justified in granting decree for dissolution of marriage to
the respondent (husband) and, in consequence, was justified in dismissing
the petition for restitution of conjugal rights filed by the appellant
(wife).

20) By impugned judgment, the High Court dismissed the appeals and
affirmed the judgment/decree of the Trial Court. The appellant (wife), felt
aggrieved, has filed these appeals by special leave against the judgment of
the High Court.

21) Heard Mr. D.N. Goburdhan, learned counsel for the appellant and Mr.
Gaurav Goel, learned counsel for the respondent.
22) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeals and while
setting aside the impugned order, dismiss the divorce petition filed by the
respondent(husband) against the appellant and, in consequence, allow the
petition filed by the appellant(wife) for restitution of conjugal rights
against the respondent (husband).

23) The word “cruelty” used in Section 13(1)(ia) of the Act is not
defined under the Act. However, this expression was the subject matter of
interpretation in several cases of this Court. What amounts to “mental
cruelty” was succinctly explained by this Court (three Judge Bench) in
Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships speaking
through Justice Dalveer Bhandari observed that no uniform standard can ever
be laid down for guidance, yet it is appropriate to enumerate some
instances of human behavior which may be considered relevant in dealing
with the cases of “mental cruelty”.

24) Their Lordships then broadly enumerated 16 category of cases which
are considered relevant while examining the question as to whether the
facts alleged and proved constitute “mental cruelty” so as to attract the
provisions of Section 13 (1) (ia) of the Act for granting decree of
divorce.

25) Keeping in view the law laid down in Samar Ghosh’s case (supra), when
we examine the grounds taken by the respondent in his petition for proving
the mental cruelty for grant of divorce against the appellant, we find that
none of the grounds satisfies either individually or collectively the test
laid down in Samar Ghosh’s case (supra) so as to entitle the respondent to
claim a decree of divorce.

26) This we hold for more than one reason. First, almost all the grounds
taken by the respondent in his petition were stale or/and isolated and did
not subsist to enable the respondent to seek a decree for dissolution of
marriage. In other words, the incidents of cruelty alleged had taken place
even, according to the respondent, immediately after marriage. They were
solitary incidents relating to the behavior of the appellant. Second,
assuming that one or more grounds constituted an act of cruelty, yet we
find that the acts complained of were condoned by the parties due to their
subsequent conduct inasmuch as admittedly both lived together till 2006 and
the appellant gave birth to their second daughter in 2006. Third, most of
the incidents of alleged cruelty pertained to the period prior to 2006 and
some were alleged to have occurred after 2006. Those pertained to period
after 2006 were founded on general allegations with no details pleaded such
as when such incident occurred (year, month, date etc.), what was its
background, who witnessed, what the appellant actually said etc.

27) In our view, the incidents which occurred prior to 2006 could not be
relied on to prove the instances of cruelty because they were deemed to
have been condoned by the acts of the parties. So far as the instances
alleged after 2006 were concerned, they being isolated instances, did not
constitute an act of cruelty.

28) A petition seeking divorce on some isolated incidents alleged to have
occurred 8-10 years prior to filing of the date of petition cannot furnish
a subsisting cause of action to seek divorce after 10 years or so of
occurrence of such incidents. The incidents alleged should be of recurring
nature or continuing one and they should be in near proximity with the
filing of the petition.

29) Few isolated incidents of long past and that too found to have been
condoned due to compromising behavior of the parties cannot constitute an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30) In our considered opinion, both the Courts below failed to take note
of this material aspect of the case and thus committed jurisdictional error
in passing a decree for dissolution of marriage.

31) We cannot, therefore, countenance the approach of the High Court
because it did not, in the first instance, examine the grounds taken in the
petition to find out as to whether such grounds constitute mental cruelty
or not? The finding, therefore, though concurrent does not bind this
Court.

32) We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.

33) We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.

35) In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.

36) This takes us to the next question as to whether the appellant was
able to make out any case for restitution of conjugal rights against the
respondent.

37) Having perused her petition and evidence, we are of the view that the
appellant is entitled for a decree for restitution of conjugal rights
against the respondent.

38) In our considered view, as it appears to us from perusal of the
evidence that it is the respondent who withdrew from the appellant’s
company without there being any reasonable cause to do so. Now that we have
held on facts that the respondent failed to make out any case of cruelty
against the appellant, it is clear to us that it was the respondent who
withdrew from the company of the appellant without reasonable cause and not
the vice versa.

39) In view of foregoing discussion, the appeals succeed and are allowed.
The impugned judgment is set aside. As a result, the petition filed by the
respondent (husband) under Section 13(1) of the Act seeking dissolution of
marriage is dismissed. As a consequence thereof, the marriage between the
parties is held to subsist whereas the petition filed by the appellant
against the respondent under Section 9 of the Act seeking restitution of
conjugal right is allowed. A decree for restitution of conjugal right is,
accordingly, passed against the respondent.

40) We hope and trust that the parties would now realize their duties and
obligations against each other as also would realize their joint
obligations as mother and father towards their grown up daughters. Both
should, therefore, give quite burial to their past deeds/acts and bitter
experiences and start living together and see that their daughters are well
settled in their respective lives. Such reunion, we feel, would be in the
interest of all family members in the long run and will bring peace,
harmony and happiness. We find that the respondent is working as a
“Caretaker” in the Government Department (see Para 4 of his petition). He
must, therefore, be the “Caretaker” of his own family that being his first
obligation and at the same time attend to his Government duties to maintain
his family.
……………………………………..J.
[R.K. AGRAWAL]
….………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;

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
$~
* 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