Delhi High Court Guidelines For Undertaking Of Mutual Consent Divorce

Last week, the Delhi High Court gave Landmark Guidelines on Mutual Divorce while deciding the fate of 17 petitions between warring couples in which at least one of the parties has resiled from their original position, rendering Decree u/s 13B of the Hindu Marriage Act as an impossibility.

This judgement will favour the better prepared as it provides for penalty in case of withdrawal of consent by the opposite party and even provides for civil contempt. It clarified the position already enumerated in the law that the party resiling from consent cannot be forced to provide consent though the original position be restored for the consenting party.

Now, advocates will draft better mutual consent petitions, and the onus will be on the courts to scrutinize the agreement so that no unlawful agreement is made and agreed upon before the court. The court expounded that the mutuality of the consent to divorce should commence from the stage of filing the First motion under Section 13B(1). It should continue when moving the Second motion under Section 13B(2) of the Act until the court completes the enquiry and a divorce decree is finally passed. The element of mutual consent is a sine qua non (an essential condition) for passing a divorce decree.

Delhi High Court further clarified that so far as a waiver of the waiting period prescribed in Section 13B(2) is concerned, in the recent judgment delivered by the Supreme Court in the case of Amardeep Singh (supra), wherein Section 13B(2) has been interpreted to be procedural, the spirit of the said provision has been highlighted. The Court observed that in cases where the marriage has irretrievably broken down, the Court can waive the waiting period to enable parties to rehabilitate themselves and start their lives afresh.

The general guidelines suggested to be followed by the Court while recording the undertaking/ agreement of the parties are as follows:-

1. If the parties amicably settle their inter disputes and differences and arrive at a settlement, whether of their own accord, with the aid and assistance of the court or on exercising the ADR processes (mediation/ conciliation/ Lok Adalat), or otherwise, the settlement agreement that may be drawn up, must incorporate the following:-
   • Record in clear, specific and unambiguous language the terms/ stipulations agreed upon between the parties;
   • Record in clear, specific, simple and unambiguous language, the mode, manner, mechanism and/or method for the implementation or compliances of the terms/ stipulations agreed upon between the parties;
   • Record an undertaking of the parties that they will abide by and be bound by the agreed terms/ stipulations of the settlement agreement;
   • Stipulate a fine or penalty as may be agreed upon, in the event of a default of the agreed terms/ stipulations of the settlement agreement by either side;
   • Provide for the consequences of the breach of the terms/ stipulations of the settlement agreement;
   • Record a declaration of both the parties in unequivocal and unambiguous terms that they have agreed on each and every term recorded in the settlement agreement, after carefully reading over and fully understanding and appreciating the contents, scope and effect thereof, as also the consequences of the breach thereof, including payment of the fine/ penalty, if so agreed;
   • The settlement agreement must state that the terms have been settled between the parties of their own free will, violation and consent and without any undue pressure, coercion, influence, misrepresentation or mistake (both of law and fact) in any form whatsoever. It should also be stated that the settlement agreement has correctly recorded the agreed terms.
2. The settlement agreement may include a term/stipulation that the parties have agreed that they would dissolve their marriage by mutual consent, which must be by the law, as provided under Section 13B of the Hindu Marriage Act.
3. The settlement agreement may include other terms/stipulations settled between the parties, including payment of money, transfer of moveable/ immovable properties such as jewellery/ stridhan, maintenance amounts, alimony, etc. or plans for the custody of the children/ visitation rights of children. The court must scrutinise the terms to satisfy itself that they are by the spirit of the law and are enforceable and executable.
4. On the said settlement agreement being presented, along with a report(in the event the settlement is arrived at through mediation or conciliation or Lok Adalat) to the court where the proceedings between the parties are sub-judice, the said court should apply the procedure and principles to be followed by a civil court under and analogous to the provisions of Order XXIII Rule 3 of the Code of Civil Procedure.
5. To avoid any ambiguity or misunderstanding on the part of either of the parties, at a later stage, a clear and unambiguous undertaking to the court must be recorded.
6. The statements of the parties may be recorded by the court after putting them on oath in the following manner:-
   • the parties should affirm the terms of the settlement;
   • the fact that they have executed the settlement agreement after fully understanding the terms, consents, effect and consequences thereof;
   • that the same has been arrived at of their own free will and volition;
   • that they would be liable for penal consequences in case of breach.
7. In the alternative, the court may direct the parties to file their respective affidavits affirming the terms and conditions of the settlement. If considered necessary, the court may ask the parties to formally prove the said affidavits and the settlement agreement they executed.
8. The Court must apply its judicial mind to satisfy itself that the settlement between the parties is not only bonafide, equitable and voluntary but is enforceable in law and is not opposed to public policy. The court must also satisfy that there is no impediment of any nature in accepting the said settlement and the parties’ undertakings and binding them down to it.
9. After perusing the settlement agreement, recording the statements of the parties and examining the affidavits filed by them, as the case may be, the Court must expressly accept the statements of the parties and the undertakings given by them as also the terms/stipulations of the settlement agreement and direct that they shall remain bound by the same.
10. Depending upon the jurisdiction of the Court, appropriate orders/decrees are passed. The said order/decree, as the case may be, should spell out the consequences of breach or violation of any of the terms of the settlement agreement. If any fine/penalty has been agreed to be paid under the terms of the settlement agreement or in case of breach of the same, the order shall state that the said amount will be recovered from the defaulting party. The parties must be informed that they will be liable to be punished for contempt of Court in case of any breach/violation/willful/deliberate disobedience of the terms of the settlement agreement.
11. The Court shall pass a decree/order regarding the subject matter of the suit/proceedings. For those matters/disputes that are not the subject matter of the suit/proceedings, where a settlement has been reached before a non-adjudicatory ADR forum, the Court shall direct that the settlement agreement shall be governed by Section 74 of the Arbitration and Conciliation Act (in case of a settlement through conciliation) and Section 21 of The Legal Services Authorities Act, 1987. (in respect of a settlement by a Mediator or a Lok Adalat) [Refer: Afcons Infrastructure Ltd. (supra)]
12. If the obligations under the settlement agreement/ undertaking/ consent order/ decree are breached by one party, then appropriate orders shall be passed by law at the instance of the aggrieved party.
13. For breach of the undertaking given to the concerned court or willful/ deliberate violation of a consent order/ decree, if so approached or otherwise, the court would take appropriate action as permissible in law to enforce compliance by the defaulting party by exercising contempt jurisdiction as contemplated under Section 2(b) of the Contempt of Court Act, 1971. This will, however, exclude any coercive orders compelling the defaulting party to consent to grant a decree of divorce by mutual consent, notwithstanding any settlement/ undertaking given by the parties before any fora.

In a nutshell, if the settlement agreement, though reached in any forum, is drafted well in cases involving diverse litigation, the recourse is available only to the party who abides by the terms of the settlement agreement, and the only recourse available to the non-abiding party is that s/he can deny mutual consent divorce. Any penalty/ fine must be incorporated in the settlement agreement only. For example, in such cases, if the girl resiles from the agreement post-first motion, and if the conditions are incorporated, the boy can get his maintenance cases dropped, and 498a quashed regardless of any objections from the girl. Still, for divorce, he shall have to approach the court. Also, the onus is on the courts to see that any conditions not by the law of the land are not incorporated into the agreement. This would give some relief for fathers fighting for custody of children.

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