Consent cannot be withdrawn in Mutual Consent divorce u/s 13-B of Hindu Marriage Act.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