February,1,2017:
After signing the agreement by mutual consent to file for divorce, will either of the partner face contempt proceedings if they have any 2nd thought?
That is the question the Delhi HC asked recently while referring to a batch of 8 separate divorce petitions to a larger bench.
There have been contradictory views in earlier rulings
Justice Manmohan expressed some serious doubts on the practice of the courts hauling up spouses for contempt if they fail to honour their earlier stand of divorce by mutual consent during the 6 month “cooling off” period.
Section 13 B of the Hindu Marriage Act allows for ‘divorce by mutual consent’ in a 2 step process. The 1st motion of divorce can be filed by a couple if they haven't been living together for at least one year.
After this, the law mandates a “waiting period or cooling off period” of 6 to 18 months. When this period ends, the spouses can either withdraw their consent, & attempt to continue their married life, or file the 2nd motion for divorce, after this their separation is finalized.
Even in the case of a “contested divorce”, where there's a criminal complaint filed by either of the spouses or any 1 of them comes to court for a divorce against the other’s will- the couple gets a waiting period to resolve the differences.
During this period of mediation, if the partners agree to the terms of getting mutual separation, then they file a plea for divorce by mutual consent.
Say, a couple has filed a divorce petition under Sec. 13B(1) (divorce by mutual consent) or a motion under Section 13B(2) of the Act or both, but then 1 of them decides to change their mind in view of the option to renege/reconsider their decision of taking divorce by mutual consent under Section 13 B(2) of the Act”. the question is whether they should be held liable for contempt?
It was raised before the single Bench of the Delhi High Court recently.
The Apex Court, and Benches of Mumbai High Court and Delhi High Court earlier have given differing judgments on finality of agreement in the divorce mediations.
In one case, the wife had refused to file the 2nd motion through mutual consent for divorce, after receiving part payment of the alimony, as she had “changed her mind” about the terms of custody for her child. The High Court had said that the “erring spouse” can't be allowed to “take any advantage” of the option allowed in the cases of divorce by mutual consent.
Citing many “contradicting judgments”, Justice Manmohan expounded that since Apex Court has held that the “consent” for divorce must “continue till date of the decree”, the right of parties to change their minds cannot be taken away.
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