What Happens When Party Withdraws Consent of Divorce After 1st Motion

Delhi High Court

Date of Decision: 15/05/2018

CORAM: 1. HON’BLE MS. JUSTICE HIMA KOHLI

2. HON’BLE MS. JUSTICE DEEPA SHARMA

RAJAT GUPTA VS RUPALI GUPTA

 BACKDROP OF THE CASE

The proceedings have been filed by various litigants and are clubbed together because of being  referred  to a larger bench by the single bench of the Delhi High Court in terms of an order dated 09.01.2017[1]

A batch of contempt petitions were placed before the said Court (single bench), because of willful disobedience of the undertaking given by a spouse to appear, sign and file, both, the Section 13B(1) petition (first motion in mutual consent divorce) and the Section 13(B)(2) petition (second motion in mutual consent divorce) under the Hindu Marriage Act, 1955.

BRIEF FACTS OF THE CASE

Rajat Gupta versus Rupali Gupta (the facts of all the connected cases are similar to the said case)

The parties were married to each other in accordance with Hindu rites on 16.07.2005. Two children were born out of the wedlock. The parties vide a joint statement dated 16.10.2012 decided to absolve their marriage by way of mutual consent divorce.

The First motion was allowed vide order dated 03.11.2012. At the time of recording of the first motion, the wife undertook to extend her consent to file the second motion and fully co operate with the husband for getting the decree of second motion. Later, after the first motion and before the second motion, the wife withdrew her consent for getting the decree of divorce by mutual consent.

Consequently, the husband filed the contempt petition before the Hon’ble High Court of Delhi and same was referred to a larger bench by the order of HMJ Manmohan on 09.01.2017 along with a bunch of other contempt petitions.

ISSUES EMBROILED

The questions referred to the Ld.  Division Bench by the single judge  bench are as follows :-

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?

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?

3. 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?

VIEW TAKEN BY THE COURT

Issue 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 distinguishing feature of Section 13B of the Act, 1955 is the mutuality of the consent to divorce proceedings. The consent 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 (essential) 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.

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 then in order to succeed the aggrieved party has to prove that he has been placed in a disadvantageous position by the act of defaulting party.

The Contempt of Courts Act, 1971 has empowered the Courts to entertain the petition.

Issue 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?

If a party gives an undertaking 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, then its right to rethink/renege under Section 13B(2) of the Act, cannot be waived off.

Hence, in a proceeding of divorce by mutual consent either of the party can withdraw their consent at any stage till the final decree is passed by the Court.

The element of mutual consent remains the essence 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.

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.

Issue3

 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?

If the parties amicably settle their inter se disputes and differences, and arrive at a settlement, whether of their own accord, or 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:-

1.  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 there being 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 said agreed terms.

 

• The settlement agreement may include a term/stipulation that the parties have agreed that they would dissolve their marriage by mutual consent, which necessarily has to be in accordance with the law, as provided under Section 13B of the Hindu Marriage Act.

• The settlement agreement may include other terms/stipulations settled between the parties including payment of money, transfer of moveable/immovable properties as for example, jewellery/stridhan, maintenance amounts, alimony etc. or plans for the custody of the children/visitation rights of children. The said terms must be scrutinized by the court to satisfy itself that they are in accordance with the spirit of 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/or analogous to the provisions of Order XXIII Rule 3 of the Code of Civil Procedure.

1.  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.

1. The statements of the parties may be recorded by the court after putting them on oath in the following manner:-

a) the parties should affirm the terms of the settlement;

b) the fact that they have executed the settlement agreement after fully understanding the terms, consents, effect and consequences thereof;

c) that the same has been arrived at of their own free will and volition;

d) that they would be liable for penal consequences in case of breach. 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 not only the said affidavits, but also the settlement agreement executed by them.

12. The Court must apply its judicial mind to satisfy itself that the settlement arrived at between the parties is not only bonafide, equitable and voluntary in nature, but is enforceable in law and is not opposed to public policy. The court must also satisfy itself that there is no impediment of any nature in accepting the said settlement and the undertakings of the parties and binding them down thereto. After perusing the settlement agreement, recording the statements of the parties and/or examining the affidavits filed by them, as the case may be, the Court must specifically accept the statements of the parties and/or the undertakings given by them as also the terms/stipulations of the settlement agreement and direct that they shall remain bound by the same.

13. Depending upon the jurisdiction of the Court, appropriate orders/decree be passed. The said order/decree, as the case may be, should clearly spell out the consequences of breach, violation of any of the terms of the settlement agreement. In the event 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 the event of any breach/violation/willful/deliberate disobedience of the terms of the settlement agreement.

14. A decree/order shall be passed by the Court in respect of 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 fora, 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/or 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, at the instance of the aggrieved party, appropriate orders shall be passed in accordance with law.

15. 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 give its consent for grant of a decree of divorce by mutual consent, notwithstanding any settlement/undertaking given by the parties before any fora.

CONCLUSION

1. The essential characteristic of a divorce by mutual consent is the unequivocal consent of both the spouses.
2. If a settlement agreement / Memorandum of Understanding (MOU) has been executed between the parties/ spouses, then also the consent can be withdrawn by either of the spouse.
3. The said consent can to be withdrawn any time after recording the statement under Section 13 B (1) (first motion) but before the recording of statement under Section 13B(2) (second motion).
4. Hence, in a proceeding of divorce by mutual consent either of the party can withdraw their consent at any stage till the final decree is passed by the Court.
5. The withdrawal of consent can result in initiation of proceedings under Contempt of Courts Act, 1971 against the defaulting party/ spouse. 
6.  

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