Bombay High Court
Mr. Jayant S/O. Prafullakumar ... vs Mrs. Sonal W/O. Jayant Bhansali @ ... on 14 July, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
FAMILY COURT APPEAL NO. 21/2016
Mr. Jayant s/o Prafullakumar Bhansali
Aged 36 years, Occupation - Business
R/o Bhansali Bhavan, Itwari Bhaji Mandi
Nagpur - 440 002
(Tahsil and District : Nagpur
(Maharashtra State ) ..APPELLANT
v e r s u s
Mrs. Sonal w/o Jayant Bhansali
(@ Sonal D/o Ramesh Shah)
Aged 39 years, occu: Privte,
R/o Darodkar Chowk, 182 South Ring Road
Tukdoji Putla, Nagpur
Tahsil & District Nagpur
(Maharashtra State ) .. ...RESPONDENT
...........................................................................................................................
Shri H.D.Dangre, Advocate for appellant
Shri Anand Parchure, Advocate for the respondent
............................................................................................................................
CORAM: SMT. VASANTI A. NAIK &
MRS . SWAPNA JOSHI, JJ
.
DATED : 14th July, 2016
ORAL JUDGMENT: (PER SMT.VASANTI A. NAIK, J.)
1. The Family Court Appeal is 'admitted' and heard finally, with
consent.
2. By this Family Court Appeal, the appellant-husband challenges
the order of the Family Court, dated 8th February, 2016, below Exh.1, allowing
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an Application filed by the respondent for withdrawal of the consent for
passing a decree of divorce under Section 13-B of the Hindu Marriage Act
(hereinafter referred to as 'the Act' for the sake of brevity ).
3. The appellant (hereinafter referred to as 'the husband' for the
sake of convenience) and the respondent (hereinafter referred to as the 'the
wife') were married at Nagpur on 7.10.2001 as per the Hindu rites and
customs. Two sons were born to the parties from the wedlock, namely,
Siddartha and Dev. Since there was an irretrievable breakdown of the
marriage between the husband and the wife, the parties started residing
separately and it is the case of the husband that the parties voluntarily and
with their free will and consent, filed an Application for grant of decree of
divorce by mutual consent, under Section 13-B of the Act. According to the
appellant-husband, the parties presented the Petition, under section 13-B of
the Act before the Family Court, on 1.7.2015 after the same was prepared and
signed by the parties on 13.06.2015. As per the terms in the Application
under section 13-B of the Act, Rs. 7 lakh were to be paid by the husband to the
wife towards full and final settlement and the said amount was already paid
to her on 29.06.2015 through a Cheque bearing No.683644, drawn on the
UCO Bank. Siddartha and Dev were to reside with the husband, as per the
consent terms. More than a month after the filing of the Application under
Section 13-B, the wife applied for taking the case on Board, on 12.08.2015. It
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was stated in the pursis filed by the wife that the consent of the wife for
seeking the decree of divorce by mutual consent, was sought under the
pressure of the husband and his brother. It was mentioned that the wife was
forcibly brought to the Court. An affidavit reiterating the same facts was also
presented by the wife in the Family Court. On 2.11.2015, the wife filed
another Application for permission to take the case on Board and to appoint
another lawyer. An Application for permission to withdraw the Application
under Section 13-B of the Act was also filed. On 11.1.2016, the wife filed an
Application for grant of compensation. Thereafter, it appears that a First
Information Report was filed against the husband by the wife, under section
498-A of the Penal Code. The husband filed a reply to the aforesaid
Application along with the documents. Certain material was placed on record
to show that the wife had withdrawn the amount of Rs. 7 lakh that was paid
to her vide Cheque No. 683644. An affidavit of Advocate Kadu was filed by the
husband on 27.1.2016 to point out that the parties had approached him and
after deliberations, the consent terms were prepared and the parties signed
the documents before the Notary. The Family Court considered the Application
filed by the wife for permission to withdraw the Petition, under Section 13-B of
the Act and allowed the same, by the order dated 8th February, 2016. The
husband had challenged the said order in this Family Court Appeal.
4. Shri H.D.Dangre, the learned counsel for the appellant-husband
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submitted that the Family Court was not justified in permitting the wife to
unilaterally withdraw the consent after she had voluntarily signed the consent
terms and had presented the Petition in the Family Court, on 1.7.2015. It is
stated that a party could be permitted to wriggle out of the consent terms
only if it is proved that fraud was practised on the party at the time of filing of
the Petition under section 13-B of the Act. It is submitted that a party cannot
be permitted to withdraw his/her consent unless it is strictly proved that the
consent for filing the Petition under section 13-B of the Act was secured
fraudulently or under undue influence or coercion. It is submitted that the
wife had acted upon some of the consent terms that were favourable to her
and had encashed the cheque for an amount of Rs. 7 lakh, as could be seen
from the Bank certificate tendered by the husband in the Family Court. It is
stated that the Family Court could not have relied on the case of the wife in
the pursis-affidavit filed by her that she was forcibly made to sign on the
consent terms and attend the Court. It is stated that the aforesaid facts could
have been proved by the wife only after permitting the parties to tender
evidence. It is stated that once the wife had acted upon the terms that were
favourable to her, she could not have been permitted to back out unless she
proved that her consent was sought by practising fraud on her. It is stated
that the husband had acted upon the consent terms to his detriment by paying
a sum of Rs. 7 lakh to the wife towards the full and final settlement and, in
this background, the wife could not have been permitted to withdraw the
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Petition under section 13-B of the Act, without proving the facts stated by her
in the Application for permission to withdraw the Petition under section 13-B
of the Act. It is stated that the wife had changed her stand from time to time
after she applied for taking the case on Board, on 12.08.2015. It is stated that
whether fraud was actually practised on the wife while securing her consent
and/ or whether the amount of Rs. 7 lakh was paid to the wife towards the
transaction of the partnership business in which she was one of the parties, as
held by the Family Court could not have been proved unless the parties were
granted an opportunity to tender evidence.
5. Shri Anand Parchure, the learned counsel for the respondent-wife
initially supported the order of the Family Court but after the matter was heard
for some time, the learned counsel fairly submitted that the findings in the
impugned order dated 8.2.2016 are recorded by the Family Court without
permitting the parties to tender evidence. It is stated that since it is the case of
the wife that her consent was not freely granted and she was forced to sign on
the Petition for grant of decree of divorce by mutual consent in view of the
pressure exerted by the husband and his brother, the wife had rightly applied
for permission to withdraw the Petition, jointly filed by the parties under
section 13-B of the Act. It is stated that though the amount of Rs.7 lakh
appears to have been withdrawn by the wife, as held by the Family Court, the
said amount was payable to the wife towards her share in the partnership
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business in which she was one of the partners. It is stated that if this Court is
to remand the matter to the Family Court for permitting the parties to tender
evidence on the respective claims made by them on the Application made by
the wife for permission to withdraw the Petition under Section 13-B of the Act,
the Family Court may be directed to decide the matter within a time-frame.
6. On hearing the learned counsel for the parties and on a perusal
of the original record and proceedings, it appears that the following points
arise for determination in this Family Court Appeal :-
(A) Whether the matter is liable to be remanded to the
Family Court for permitting the parties to tender evidence,
before the wife is permitted to withdraw the Petition under
section 13-B of the Act ?
(B) What order ?
7. It is not in dispute that the parties have prepared and signed the
Petition under section 13-B of the Act, on 13.06.2015 and both of them
together have filed the same in the Family Court, on 1.7.2015. One of the
consent terms pertains to the payment of Rs. 7 lakh by the husband to the
wife by Cheque No.683644 drawn on the UCO Bank, Nagpur, towards full
and final settlement. The said cheque was accepted by the wife and it is the
case of the husband that the said cheque was encashed by her as per the
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certificate-report of the Bank. The wife had, on 12.08.2015, applied for taking
the case on Board and had pleaded that she had given her consent for a
decree of divorce by mutual consent under pressure and that she was forcibly
brought to the Court at the time of filing of the Petition. Thereafter, the wife
changed the counsel from time to time and then filed the Application for
withdrawal of the Petition under section 13-B of the Act and also an
Application for grant of compensation was made. It is rightly submitted on
behalf of the husband that if the wife had acted upon some consent terms that
were beneficial to her by accepting Rs. 7 lakh towards the full and final
settlement and had withdrawn the said amount, she should not have been
permitted by the Family Court to withdraw the Petition, jointly filed by her,
under section 13-B of the Act, in view of the judgment of this Court, reported
in 2011(4) Mh.L.J. 187: Prakash Kalandri vs. Jahnavi Kalandri. In this
Family Court Appeal, we are not deciding whether the wife had received the
amount of Rs. 7 lakh towards her share in the business of the partnership firm,
as stated by her in one of her Applications and/or whether it was received by
her towards permanent alimony, as stated by the husband. It would be
necessary for the parties to prove their respective cases in the Family Court by
tendering the evidence. The Family Court should not have observed that the
wife may have received the amount of Rs. 7 lakh towards her share in the
partnership-firm business, without permitting the parties to tender the
evidence on the said aspect. Also, the Family Court should not have made any
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observation about the likelihood of fraud being practised on the wife, for the
reasons stated in the impugned order without permitting the parties to tender
the evidence in that regard. Whether one party has practised fraud on the
other, could be decided by the Court only after permitting the parties to
tender the evidence. In the instant case, the Family Court, without permitting
the parties to tender evidence, erroneously observed in the impugned order
that the husband had made the payment of Rs. 7 lakh to the wife towards
permanent alimony, does not seem to be believable. The Family Court further
observed without permitting the parties to tender evidence that there was
something fishy in the transaction, as by the gift deed, dated 18.06.2015, the
wife had given up her share in the family business in favour of the husband.
The Family Court further observed without there being any material on record
that it was not possible for the wife who had gifted a sum of more than Rs. 50
lakh to the husband, to accept a permanent alimony of Rs.7 lakh after waiving
her right to the custody of both her children. Before making all the aforesaid
observations, the Family Court ought to have granted permission to the parties
to tender the evidence.
8. In the circumstances of the case, it is necessary to remand the
matter to the Family Court to decide the Application filed by the wife for
permission to withdraw the Petition under section 13-B of the Act, after
permitting the parties to tender evidence, both oral as well as documentary.
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9. Hence, for the reasons aforesaid, the Family Court Appeal is
partly allowed. The order of the Family Court, dated 8th February, 2016, is
hereby set aside. The Family Court is directed to decide the Application of the
wife as early as possible, and positively within eight months from the date of
appearance of the parties before the Family Court. The parties undertake to
appear before the Family Court on 2
nd August, 2016
. The Registry is directed
to remit the record and proceedings to the Family Court, at the earliest. Order
accordingly. There would be no order as to costs.
JUDGE JUDGE
sahare
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C E R T I F I C AT E
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