Despite Settlement Agreement, Courts Cannot Compel Party To Consent To Mutual Divorce: Delhi HC [Read Judgment]

In a significant judgment, the Delhi High Court on Tuesday asserted that Courts cannot compel a party to give their consent for divorce by mutual consent despite them having entered into a settlement agreement under Section 13B of the Hindu Marriage Act.The Bench comprising Justice Hima Kohli and Justice Deepa Sharma was hearing a reference by a Single Judge posing the following four questions of law: 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? 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? 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? Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia (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)."Statutory provisionSection 13B requires that a petition for divorce by mutual consent must be presented to the court jointly by both the parties, and contemplates two stages. The first stage, as prescribed by Section 13B(1) lays down the essential requirements to be fulfilled by the parties. The second stage, as prescribed by Section 13B(2) relates to the manner in which the court exercises its jurisdiction, and provides that both the parties must again appear in the Second motion before the court.The parties are also required to make a joint motion between six and eighteen months after the date of presentation of the first motion. It is at the stage of the Second motion that the court must conduct an enquiry as it may consider necessary, to satisfy itself as to the genuineness of the averments made in the petition and also to verify as to whether the said consent was not obtained by force, fraud or undue influence. Only after such enquiry should a decree of divorce be passed.Whether Violation/Breach of Undertaking/ Settlement Agreement/Consent Order/Decree Would Amount to Contempt of Court?While answering this question in the affirmative, the Court asserted that the element of mutual consent was the sine qua non of passing a decree of divorce under Section 13B and withdrawal of consent even at the stage of enquiry, as contemplated under Section 13B(2), is also in exercise of the right available to a party.It further held that a defaulting party can be held liable for civil contempt for the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree.The Court, however, clarified 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, opining that this would be against the object, policy and intent of Section 13B of the Hindu Marriage Act.Whether party can change its mind after giving an undertaking but before filing a second motion?Answering the question in the affirmative, the Court pointed out that the statute "keeps a window open for the parties to withdraw their consent at any stage till the decree of divorce is finally granted". Once a party backs off, it added, the Court cannot then compel them to give their consent on the earlier settlement or undertaking.Guidelines to be followed by Courts while recording the undertaking/ agreement of parties under Section 13BThe following general guidelines were then suggested to be followed by the Courts while recording undertaking/agreement of the parties:Contents of the settlement agreement (1) 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:- i) Record in clear, specific and unambiguous language, the terms/stipulations agreed upon between the parties; ii) Record in clear, specific, simple and unambiguous language, the mode, manner, mechanism and/or method for the implementation or compliances ...

Despite Settlement Agreement, Courts Cannot Compel Party To Consent To Mutual Divorce: Delhi HC [Read Judgment]

Apoorva Mandhani

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