BREACH OF MUTUAL DIVORCE AGREEMENT AFTER FILING MUTUAL CONSENT DIVORCE CANNOT BE COMPELLED TO OBTAIN DIVORCE BY MUTUAL CONSENT
BUT IS A CONTEMPT OF COURT !
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| Mutual Divorce |
AS per DELHI HIGH COURT JUDGEMENT Rajat Gupta vs Rupali Gupta on 15 May, 2018
Q 1: 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?
The
answer to above Q 1 is yes. The distinguishing feature of Section 13B of
the Act, 1955 is that it recognizes the unqualified and unfettered right of a
party to unilaterally withdraw the consent or reconsider/renege from a decision
to apply for divorce by mutual consent, notwithstanding any undertaking given
in any legal proceeding or recorded in any settlement/joint statement, in or
outside the court, resulting in a consent order/decree, to cooperate with the
other spouse to file a petition under Section 13B(1) or a second
motion under Section 13B(2) of the Act, or both. Withdrawal of the
consent even at the stage of the enquiry, as contemplated under Section 13B(2), is also in exercise of the right available to a party under the very
same provision. In other words, the mutuality of the consent to divorce should
commence from the stage of filing the First motion under Section 13B(1) and
it should continue at the time of moving the Second motion under Section 13B(2)of the Act, till such time that the court completes the enquiry and a
decree of divorce is finally passed. The said element of mutual consent is a
sine qua non for passing a decree of divorce. This being the legal position,
the defaulting party cannot be compelled to file or appear in the petition or
motion or both, to obtain divorce by mutual consent.
(b)
Any other view will not only impinge on the jurisdiction of the court which has
an obligation under the Statute to undertake an independent enquiry before
passing a decree of divorce by mutual consent, it will also encroach upon
a statutory right vested in a party under Section 13B(2) of the Act
and go against the very spirit of the provision, at the heart of which lies the
right of a party to reflect/revisit and retract from its decision of going
ahead for grant of divorce by mutual consent, during the cooling off period.
(c)
At the same time, a defaulting party can be held liable for civil contempt on
the ground of breaching the terms and conditions incorporated in an undertaking
given to the court or made a part of a consent order/decree. In the event the
aggrieved party approaches the court for initiation of contempt proceedings
against the defaulting party for willful/deliberate breach of any of the terms
and conditions of an undertaking/settlement agreement/consent order or a decree
and takes a plea that as a consequence thereof, he/she has been placed in a disadvantageous
position or has suffered an irreversible/grave prejudice, the court in exercise
of its inherent powers of contempt, supplemented by the 1971 Act has the
requisite jurisdiction to entertain the petition and direct restoration of
status quo ante in every possible way. Besides directing the defaulting party
to disgorge all the benefits/advantages/privileges that have/would have enured
in its favour and restoring the parties to the position that was before they
had arrived at such a settlement/agreement/undertaking and/or before the
consent order/decree was passed in terms of the settlement arrived
at/undertakings recorded, the court has the discretion to punish the defaulting
party for civil contempt, depending on the facts of a given case. Thus,
contempt jurisdiction operates in a different field and is uninfluenced by the
fetters imposed on a court under the Act of 1955. The only rider to the above
is that no direction can be issued even in contempt proceedings to compel the
defaulting party to give its consent for a decree of divorce by mutual
consent, as it is opposed to the object, policy and intent of Section 13B of
the Hindu Marriage Act.
Q
2: 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?
The answer to the
first limb of Q 2 is no. Notwithstanding any undertaking given by a party
before a court to file a Second motion under Section 13B(2) or at the Section 13B(1) stage or in any separate court proceedings, its right to
rethink/renege under Section 13B(2) of the Act, cannot be waived for
the reason that such a waiver is proscribed by the Statute that keeps a window
open for the parties to withdraw their consent at any stage till the decree of
divorce is finally granted. The element of mutual consent remains the leitmotif
of the said provision and its existence is a salient and recurring theme that
like warp and weft, weaves its way through the entire process set into motion
at the Section 13B(1) stage, followed by the Section 13B(2) stage,
till the very end when a decree of divorce is granted. The right of withdrawal
of consent in the above proceedings can be exercised at any stage and exercise
of such a discretion cannot be treated as being opposed to public policy. Any
other interpretation given to the aforesaid provision would negate the
underlying aim, object and intent of the said provision. Once a party decides
to have a second thought and on reflection, backs off, the concerned court
cannot compel the defaulting party to give its consent on the basis of an
earlier settlement/undertaking.
(b) In view of the
answer given to the first limb of Q 2, the second limb of the said question
needs no answer.
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