18 May 2018 7:30 AM GMT
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...
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:
Section 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 13B
The 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:-
iii) Record an undertaking of the parties that they will abide by and be bound by the agreed terms /stipulations of the settlement agreement;
(2) 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.
(3) The settlement agreement may include other terms/stipulations settled between the parties including payment of money, transfer of moveable/immovable properties as for example, jewelry/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.
Procedure analogous to Order XXIII Rule 3 of the CPC to be applied
(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.
(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.
Recording of the statement of parties
(6) The statements of the parties may be recorded by the court after putting them on oath in the following manner:-
(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 not only the said affidavits but also the settlement agreement executed by them.
(8) 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.
(9) 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.
Contents of the order/ decree
(10) 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.
(11) 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)]
Action for breach of undertaking
(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.
(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 give its consent for grant of a decree of divorce by mutual consent, notwithstanding any settlement/undertaking given by the parties before any fora.