Bombay High Court
Vishal Nitinkumar Kondhia vs Jahnvi Vishal Kondhia on 22 January, 2018
Bench: G. S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12862 OF 2017
Vishal Nitinkumar Kondhia )
PO Box No.17354 )
10E, Main Street , Alain, )
Abu Dhabi, United Arab Emirates. ).. Petitioner
Vs.
Jahnvi Vishal Kondhia )
residing at 604/A )
Hulas Basti Gardens, Mahavir Nagar, )
Kandivali (W), Mumbai-400067. )...Respondents
AND
WRIT PETITION NO.12863 OF 2017
Vishal Nitinkumar Kondhia )
PO Box No.17354 )
10E, Main Street , Alain, )
Abu Dhabi, United Arab Emirates. ).. Petitioner
Vs.
Jahnvi Vishal Kondhia )
residing at 604/A )
Hulas Basti Gardens, Mahavir Nagar, )
Kandivali (W), Mumbai-400067. )...Respondents
Dr.Birendra Saraf with Mr.Rohan Kadam i/b. Mr.Prabhakar M.Jadhav, for
the Petitioner.
Mr.Vikram Deshmukh with Ms.Shrenai Shetty, for the Respndent.
......
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CORAM : G. S. KULKARNI, J.
RESERVED ON : 18 January 2017
PRONOUNCED ON : 22 January 2017
---
JUDGMENT:-
1. Rule on both these petitions returnable forthwith. By consent
of the parties and at their request the petitions are taken up for final
hearing.
2. The petitions arise between the same parties arising from the
same proceedings before the family court at Mumbai, as also the issues are
quite interconnected. The petitions were accordingly heard together and
are being disposed of by this common judgment. Both the petitions are
filed by the petitioner-husband and the common respondent is the wife.
3. The issue which arises for consideration in the first petition is
as to whether the petitioner-husband in defending matrimonial
proceedings instituted by the respondent- wife before the family court at
Mumbai, can be permitted to raise a defense by amending written
statement, on the basis of a divorce decree obtained by him from the
Dubai Court and whether the Family Court was justified in rejecting such
amendment to the written statement. In the second petition the issue
which falls for consideration is whether it was permissible for the
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petitioner to withdraw his consent to seek divorce by mutual consent as
contained in a written pursis filed before the Family Court. The
petitioner's application to withdraw the consent has been rejected by the
Family Court.
WRIT PETITION No.12862 of 2017
4. This writ petition challenges the order dated 5 October 2017
passed by the learned Principal Judge, Family Court, Mumbai, whereby
the application filed by the petitioner for amendment of the written
statement under Order 6 Rule 17 of the Code of Civil Procedure to raise a
plea and a defense on the basis of a divorce decree obtained by him from
the Dubai Court has been rejected.
5. The petitioner in his application seeking amendment of the
written statement had contended that the limited purpose to seek
amendment of the written statement was to incorporate the facts relating
to grant of a divorce decree by 'Dubai Court at First Instance' dissolving the
marriage between the petitioner and the respondent, being a decree dated
29 August 2013. The petitioner contended that by virtue of the decree of
the Dubai Court, the rights between the parties were finally adjudicated
by the Dubai Court which was a court of competent jurisdiction. It was
petitioner's case that in view of said conclusive judgment of the foreign
court, the Family Court at Bombay, would not have jurisdiction to
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entertain the respondent's petition (M.J. Petition No.A-1927 of 2013)
which interalia prayed for a decree of dissolution of marriage, permanent
alimony, maintenance etc. The petitioner contends that the supporting
facts were thus required to be incorporated in the written statement by
the proposed amendment. In paragraph 4 of the amendment application,
the petitioner contended that the applicant is layman, he was not aware
of the applicable legal position and was not suitably advised that the
respondent's petition was not maintainable and that it was liable to be
dismissed on the ground of the petitioner possessing a decree of divorce
passed by the Dubai Court. The amendment application was thus moved.
The delay in making such application was bonafide. The petitioner also
contended that the proposed amendments will not alter the character and
frame of the proceedings as also the nature of the written statement. It
was contended that the amendment was necessary for determining the
real controversy that would arise in the proceedings and would avoid
multiplicity of litigation.
6. The family Court in dismissing the said application of the
petitioner observed that the written statement was filed by the petitioner
on 23 July 2014. It was observed that the proceedings before the Dubai
Court ended in an exparte decree of divorce dated 29 August 2013, the
petitioner was well aware of this decree when he filed the written
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statement and could have added this fact in the written statement. It was
also observed that it was not a case that the petitioner filed the written
statement at his first appearance and had ample chance to include all the
facts as the petitioner had appeared in the proceedings on 18 November
2013 and the petition had in-fact proceeded without written statement.
Thereafter, the respondent had sought permission to file written statement
which came to be filed on 23 July 2014. It was observed that there was
sufficient time to draft and file a proper written statement and thus the
proposed amendment which is not on subsequent events, cannot be
allowed.
7. Learned Counsel for the petitioner in assailing the impugned
order has made the following submissions:-
(I) The proposed amendments were necessary so as to
incorporate a substantive defence of the petitioner to challenge the
jurisdiction of the Family Court at Bombay, in view of the marriage
between the petitioner and respondent being already annulled under a
decree of Dubai Court on 29 August 2013.
(II) It is submitted that the facts supporting the above contention
were being placed on record by the proposed amendment which pertains
to the very jurisdiction of the Court to entertain the respondent's
matrimonial petition, being an issue of jurisdiction the amendment was
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required to be allowed.
(III) In paragraph 1H of the proposed amendment the petitioner
had submitted that the decree dated 29 August 2013 passed by the Dubai
Court is final, conclusive and binding and that the respondent's petition
was barred by res judicata and was not maintainable. The Court lacking
jurisdiction to entertain the petition, res jusdicata were all issues of law.
The family Court could not have overlooked this aspect nor any opposition
to raise such a claim as being made by the petitioner in the amendment
application could have been entertained.
(IV) It is not a case that there was no foundation to such an
application, as in the previous application, filed on behalf of the petitioner
under Section 9A of the Code of Civil Procedure, raising a preliminary
issue as to the maintainability of the petition on the ground of the decree
passed by the Dubai Court, {Application No.A-1927 of 2013 (below
Ex.41)}, the petitioner had raised these contentions and had applied
before the family Court to frame a preliminary issue on maintainability of
the respondent's divorce petition. The family Court in rejecting the said
application had observed that as the objection was not raised by the
petitioner at a preliminary stage the issue of maintainability of petition
cannot be decided at a later stage. Liberty was granted to the petitioner to
prove that the judgment was not an ex-parte judgment at the adjudication
of the main proceedings. It is submitted that this aspect has been clearly
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overlooked by the Family Court in passing the impugned order.
(V) The amendment was simplicitor formulation of the plea which
was already incorporated in the written statement in its last part namely
the 'counter claim'.
In support of the above submissions, learned Counsel for the
petitioner has placed reliance on the decision of the Supreme Court in the
case "Haridas Das Vs. Usha Rani Bank (Smt)and Ors.1"; "Foreshore
Cooperative Housing Society Ltd. Vs. Praveen D.Desai (Dead) through
Legal Representatives & Ors."2
8. On the other hand the learned Counsel for the respondent in
supporting the impugned order would make the following submissions:-
(I) It was not permissible for the petitioner to move an
application for amendment of the written statement at such a belated
stage when the trial has already commenced and when the petitioner had
clear knowledge of the said facts as sought to be incorporated by the
amendment. Proviso to Order 6 Rule 17 of the C.P.C stipulates that no
application for amendment be allowed after the trial has commenced and
the petitioner had failed to satisfy on any reasonable basis as to why the
petitioner had not raised such a plea before the commencement of the
1 (2006)4 SCC 78
2 (2015)6 SCC 412
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trial.
(II) The amendment application of the petitioner was mischievous
as the petitioner is well aware that the decree of Dubai Court is
admittedly an ex-parte decree and not binding on the respondent as also
is a nullity incapable of enforcement in India. It is submitted that the sole
object of raising such a defense is not with an intention to remain in
matrimony but to delay and defeat the claim of the respondent for
maintenance, alimony and permanent residence as made in prayer clauses
(b) and (c) of the petition.
(III) It is submitted that there is an absolute lack of due diligence
on the part of the petitioner firstly when sufficient time was in hand in
initially making out such a case in the written statement which itself was
filed belatedly on 23 July 2014, and the present amendment application
was made after three years of filing of the written statement. The Court
therefore appropriately applying the stricter scrutiny as falling under the
proviso to Order 6 Rule 17 of the CPC has rejected the application.
(IV) It is submitted that in any event considering the law laid
down in the unreported judgment of the Division Bench of this Court in
"Shilpa Sachdev Vs. Anand Sachdev"3, no defence on the basis the decree
of Dubai Court could have been raised inasmuch as the Dubai Court has
no jurisdiction to entertain the petition under the provisions of Hindu
3 Family Court Appeal No. 56 Of 2016 decided on 11/8/2017
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Marriage Act and the Dubai Court was not a competent Court to decide
the matrimonial dispute between the parties.
In support of the above submissions on the applicability of the
provisions of Order 6 Rule 17 in the fact situation learned Counsel for the
respondent has also placed reliance on the decisions of the Supreme Court
in the case "Ajendraprasadji N.Pandey & Anr. Vs. Swami
Keshavprakashdasji N. and Ors."4; J.Samuel & Ors. Vs. Gattu Mahesh &
Ors."5
REASONS AND CONCLUSION
9. I have heard the learned Counsel for the parties. Some facts
need to be noted. It is not in dispute that parties are Hindu by religion
and are governed by the provisions of the Hindu Marriage Act, alibet the
marriage is stated to have been solemnized and registered under the
provisions of Special Marriage Act on 20 May 1999 at Bombay. There
are two children born from the wedlock, daughter Yashasvi who was born
on 26 March 2000 and is presently 17 years and 10 months and son
Lakshya who was born on 22 July 2003 who is at present about 14 years
of age. Disputes had arisen between the parties at Dubai, consequently the
respondent ceased to cohabit with the petitioner from 15 October 2012
and returned to Mumbai. The respondent in the matrimonial petition has
stated that the petitioner is a partner in his family business which is an
affluent and well known family in UAE. The family businesses also
include jewellery shops. There are various properties at different places in
India as set out in paragraph 7 of her petition. The respondent at some
4 (2006)12 SCC 1
5 (2012)2 SCC 300
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point of time was working in Dubai in an insurance company. She was
compelled to leave her matrimonial house on 15 October 2012 and came
back to her parent's house at Mumbai on account of mental and physical
pain and agony caused to her due to extreme humiliation, distress as
caused by the petitioner. She was constrained to file the matrimonial
petition in question before the Family Court at Mumbai, on 11 June 2013
interalia seeking a decree of dissolution of marriage under Section 27(1)
(d) and under Sections 36 and 37 of the Special Marriage Act, as also has
made a claim of an amount of Rs.5 crores towards her claim for
permanent maintenance and alimony and for a direction that the
petitioner to transfer the residence located at J-126, Gujarati Society,
Nehru Road, Vile Parle (East), Mumbai in her name so as to provide her
with a permanent residence or direct the petitioner to alternatively
provide her an accommodation admeasuring 1200 sq.ft. in and around
Vile Parle, Mumbai. It is also the respondent's contention before the
Family Court that when the respondent was away from Dubai, the
petitioner filed the proceedings on 4 November 2012 before the Dubai
Court praying for dissolution of the marriage and an ex-parte decree for
divorce was granted on 29 August 2013.
10. On the other hand according to the petitioner the decree was
granted validly inasmuch as Dubai Court was the court of competent
jurisdiction in pronouncing the said decree, after due publication of
notices to the respondent, in the local newspapers. The petitioner has
appeared in the respondent's petition before the family Court at Bombay
and initially filed written statement on 23 July 2014. In the written
statement after dealing with the contentions and the grounds as raised by
the respondent in the matrimonial petition, the petitioner has raised a
'counterclaim' to contend that the respondent's petition had become
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infructuous in view of the decree of divorce dated 29 August 2913 being
granted by Dubai Court under the Hindu Marriage Act. The petitioner
contended that in view of the divorce decree as granted by Dubai Court,
apart from the marriage being annulled, the custody of the children was
also granted to the petitioner by the said competent Court. Thereafter, the
petitioner had also moved an application under Section 9A of the CPC on
20 February 2017 praying that the Family Court frame a preliminary issue
as to the maintainability of the respondent's divorce petition under
Section 9A of the CPC and prayed that the petition be disposed of as not
maintainable. This application of the petitioner however came to be
rejected by the family Court interalia on two fold considerations, firstly in
view of both the parties filing a joint pursis below 'Exhibit 28' wherein the
parties agreed to take divorce by consent, and secondly the petitioner
having submitted himself to the jurisdiction of this Court, by filing an
application under section 9A of the CPC, was trying to delay the
proceedings pending since 2013. As also that the Section 9A application
was filed after a long delay and as the objection was not raised at a
preliminary stage, the issue of maintainability cannot be decided at a later
stage of the proceedings. It was observed that the respondent would be at
liberty to prove that the judgment of the Dubai Court is not an ex-parte
judgment. It would be appropriate to note the observations of the Family
Court in paragraphs 8 and 9 of the said order of the Family Court which
read thus:
"8. It is important to note that during pendency the parties
agreed for mutual consent divorce and a joint pursis was filed by
them vide Exh.28. Exh.28 reads, "Both parties have agreed to
take divorce by consent. The question of maintenance be decided
by this Hon'ble Court. Till date the children have been
maintained by the respondent. The respondent undertakes not to
part with or dispose of the properties standing in joint names or
single names.
9. The respondent submitted to the jurisdiction of this Court.
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By filing this application he is trying to delay the proceedings
which is pending since 2013. Bare perusal of the divorce decree
of Dubai Court shows that it was an ex-parte decree. The instant
application is filed after a long delay. The objection is not raised
at the preliminary level and therefore the maintainability of this
petition at this stage cannot be decided. The respondent is at
liberty to prove that the judgment was not an ex-parte judgment."
11. It is thus quite clear that though there were no averments in
the written statement on the basis of the divorce decree of Dubai Court in
the written statement, however the Family Court by the above order had
granted liberty to the petitioner to prove that the judgment of the Dubai
Court was not an ex-parte judgment. This order was accepted by the
respondent, as it was not challenged. The plain consequence falling from
the said order is that a window was kept open for the petitioner, on a plea
to be urged, on the Dubai decree. Thus there was already a foundation
available to the petitioner to defend the proceedings on the Dubai decree.
12. When the Family court had made it permissible for the
petitioner to raise such a plea, the sequel would be that if such averments
had remained to be incorporated in the written statement they ought to be
permitted. Thus what was sought by the petitioner's application for
amendment to the written statement was to provide supportive facts
and/or the formulation of the said defense as available to him under the
decree of Dubai Court. It is thus not a new case which in manner would
cause any injustice or would result in causing a grave and irretrievable
prejudice to the respondent so as to displace the respondent completely.
13. The principal objection of the respondent is to paragraph 1H of
the schedule of amendments sought to be incorporated in the written
statement, which reds thus:-
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"1H. In these circumstances, the marriage between the
Petitioner and the Respondent has already been dissolved by the
Dubai Court after a proper adjudication on merits. The Judgment
and Decree dated 29th August 2013 passed by the said Court is
final, conclusive and binding as against the Petitioner. The Court
of Dubai was competent to issue a divorce since both parties
resided there. It is respectfully submitted that the rules of private
international law and principles of comity require that this
Hon'ble Court respect and enforce the decree passed by the Court
of Dubai. The same is a conclusive and binding judgment. The
Respondent thus respectfully submits that the present Petition is
thus barred by res judicata and is not maintainable and this
Hon'ble Court lacks jurisdiction to entertain, try and dispose of
the same. A copy of the Dubai Court of First Instance's Judgment
and Order dated 29th April 2013 is annexed hereto at Exhibit
"B"."
(emphasis supplied)
14. The contention of the respondent in opposing incorporation
of the above averments is that a plea of res judicata and non
maintainability of the respondent's petition on the ground of Dubai Court
having pronounced decree of divorce cannot be accepted at a belated
stage. It is next contended that the plea of res judicata cannot be applied
when the Dubai Court was not a competent Court to exercise jurisdiction
when the parties are Hindu and under the Hindu Marriage Act as also the
decree passed by Dubai Court was an ex-parte decree. Thus when the
decree for all these reasons is questionable and or illegal when tested on
Indian law, any plea taken on such illegal decree itself is of no
consequence. This contention is principally based on the decision of the
Division Bench of this Court in Shilpa Sachdev Vs. Anand Sachdev
(supra). In my opinion, for the respondent to make such a plea before
this Court and call upon this Court to record any finding on the larger
issues in regard to the decree of Dubai Court being invalid and/or of no
consequence, may not be an appropriate course of action. This for the
reason it is not a case that the respondent is precluded from urging all
these pleas before the family court, as also on the basis of the said
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decision of the Division Bench of this Court and contest all the pleas of the
petitioner, being urged relying on the decree of divorce granted by the
Dubai Court.
15. The contention as urged on behalf of the respondent that the
conduct of the petitioner in not initially raising such a plea in the written
statement and at a belated stage after three years by filing of the written
statement raising such plea when the petitioner was fully conscious and
aware that the Dubai Court had granted a decree of divorce, itself would
defeat the amendment application of the petitioner. This submission also
cannot be accepted considering the nature of the proceedings before the
family Court and the provisions of the Family Courts Act, in my opinion
the rigorous and strict technicalities of law and the procedure cannot be
strictly applied to the proceedings before the family Court. In any case
technicalities should not defeat the cause of justice. The Family Court can
device and lay down its own procedure to ascertain the issues before it
and the application of the principles under the general law are subject to
the provisions of the Family Courts Act as Section 10 of the Act would
provide. Thus some allowance would be required to be made and
discretion in that regard would be required to be judiciously applied,
considering the facts and circumstances of the case. In the present facts,
the respondent being based in Dubai and depending upon the legal advice
available in Bombay, though has belatedly moved an application for
amendment of written statement, the same was required to be allowed in
view of the existing foundation that such plea was already raised by the
petitioner in the application filed by him under Section 9A of the CPC as
also by an order passed on the said application, a liberty was reserved to
the petitioner to prove that the judgment of Dubai Court was not an ex-
parte judgment. The consequence is that the plea under the decree of
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Dubai Court was available to the petitioner to defend the respondents
petition.
16. The contention as urged on behalf of the respondent referring to the
proviso to Order 6 Rule 17 is that when an amendment application being
made at a belated stage, a stricter scrutiny is called for, and unless the test
of due diligence is satisfied amendment of the pleadings cannot be
applied. There can be dispute on this requirement of law. To apply this test
the question would be what is the nature of the plea being urged and is it
such a plea which is a totally new plea changing the entire character and
the nature of the defense which would cause an injustice to the defending
party. Certainly the nature of the plea as raised by the petitioner is not
such and more particularly considering the averments as being urged in
paragraph 1H of the proposed amendment as being objected by the
respondent. In my opinion the proposed amendment was necessary to
bring to the fore the real question in controversy. The refusal to permit
such amendment would create unwarranted complications on legal issues.
It would always be appropriate that there are no loose ends left in
deciding the rights of the parties and that the adjudication by the Family
Court becomes effective on all issues. The complexion of the issue as
raised on behalf of the petitioner was not such that the same could be
glossed over by the Family Court and the Family Court could proceed to
decide the matrimonial dispute discarding the said issue which is a issue
both on law and facts. However it is now well settled that a prayer for
amendment of a plaint and a prayer for amendment of a written
statement stand on different footings. In case of amendment of a written
statement the courts would be more liberal in allowing the application
than that of a plaint as the question of prejudice would be far less than in
the the latter. Technicality of law should not be permitted to hamper the
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courts in administration of justice between the parties (See Usha
Balasheb Swami Versus Kiran Appaso Swami6.
17. To support the contention that the amendment is raised on an issue
of law qua the jurisdiction of the Family Court, learned Counsel for the
petitioner would be correct in placing reliance on the decision of the
Supreme Court in Foreshore Cooperative Housing Society Ltd. Vs.
Praveen D.Desai (Dead) through Legal Representatives & Ors. Referring
to the Constitution Bench judgment in "Pandurang Dhondi Chougule V.
Maruti Hari Jadhav"7 the Court held that the plea of res judicata is a
plea of law which concerns the jurisdiction of the court which tries the
proceedings. The Supreme Court in paragraph 49 held thus:-
"49. A Constitution Bench of five Judges of this Court in the
case of Pandurang Dhondi Chougule vs. Maruti Hari Jadhav, 1966
SC 153, while dealing with the question of jurisdiction, observed
that a plea of limitation or plea of res judicata is a plea of law
which concerns the jurisdiction of the court which tries the
proceeding. The Bench held: (AIR p.155, para 10)
"10. The provisions of Section 115 of the Code have
been examined by judicial decisions on several
occasions. While exercising its jurisdiction under
Section 115, it is not competent to the High Court to
correct errors of fact however, gross they may, or even
errors of law, unless the said errors have relation to the
jurisdiction of the court to try the dispute itself. As
clauses (a), (b) and (e) of Section 115 indicate, it is
only in cases where the subordinate court has exercised
a jurisdiction not vested in it by law, or has failed to
exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material
irregularity that the revisional jurisdiction of the High
Court can be properly invoked. It is conceivable that
points of law may arise in proceedings instituted before
subordinate courts which are related to questions of
jurisdiction. It is well settled that a plea of limitation or
a plea of res judicata is a plea of law which concerns
the jurisdiction of the court which tries the proceedings.
A finding on these pleas in favour of the party raising
6 (2007) 5 SCC 602)
7 AIR 1966 SC 153
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them would oust the jurisdiction of the court, and so,
an erroneous decision on these pleas can be said to be
concerned with questions of jurisdiction which fall
within the purview of Section 115 of the Code. But an
erroneous decision on a question of law reached by the
subordinate court which has no relation to questions of
jurisdiction of that court, cannot be corrected by the
High Court under Section 115."
18. In view of the above clear position in law, it would be difficult
to accept the contention as urged on behalf of the respondent that this
Court considering the decision in Shilpa Sachdev Vs. Anand Sachdev
(supra) ought to record a finding in this prooceedings that the decree of
divorce granted by Dubai Court itself is nullity as Dubai Court is not a
court of competent jurisdiction applying the test as referred, following the
decision of the Supreme Court in the case "Y.Narashimha Rao & Ors. Vs.
Y.Venkata Lakshmi & Anr."8. It would be premature to raise this
contention before this court. This for the reason that at the first instance
it would be appropriate for the family Court to consider such contentions
of the respondent on facts and law and come to a considered conclusion in
regard to the rival pleas as being made by the parties. I am also not
persuaded to accept the submission as made on behalf of the respondent
relying on the decision in Ajendraprasadji N.Pandey & Anr. Vs. Swami
Keshavprakashdasji N. and Ors. (supra), wherein the Supreme Court
considering the issue falling under an amendment application as made
under Order 6 Rule 17 of the CPC in a civil suit, applying the proviso to
Order 6 Rule 17 of the CPC, held that no application for amendment shall
be allowed after the trial has commenced unless inspite of due diligence
the matter could not be raised before the commencement of the trial. The
Supreme Court considering the facts of the case in hand held that the
appellant in the said case was lacking bonafides as also the amendment
8 (1991)3 SCC 451
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had sought to introduce a totally new and inconsistent case and thus had
refused to permit amendment at a belated stage when deposition of three
witnesses was already over as well as documentary evidence was already
tendered. This is not the situation in the present case. This decision was
also not in the context of a dispute before the family Court. The decision
in J.Samuel & Ors. Vs. Gattu Mahesh & Ors.(supra) would also not assist
the respondent inasmuch as the observations in regard to due diligence as
made in paragraph 19 of the decision, cannot be made applicable in the
present case, as the petitioner prior to moving the amendment
application, had raised such a plea in the Section 9A application and the
Family Court as noted above, had reserved a liberty to the petitioner in
the order dated 5 May 2017.
19. As a corollary to the above discussion it needs to be observed
with certitude that the issue as raised by the petitioner in the amendment
application was in regard to the jurisdiction of the Family Court when
issues of res judicata and conclusiveness of the decree of the Dubai Court
are being asserted. This is an issue of law. In any case the plea as being
urged in the amendment to the written statement is a plea of jurisdiction
which can be permitted to be raised at any stage of the proceedings .
20. In the light of the above discussion, the impugned order dated
5 October 2017 passed by the Family Court rejecting the petitioner's
application for amendment of the written statement, cannot be sustained
and is required to be quashed and set aside. The application of the
petitioner seeking amendment of the written statement (below Exhibit 46)
stands allowed. However, there are some lapses on the part of the
petitioner in not being prompt in moving such an application, the
application cannot be allowed unconditionally. The same is thus allowed
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on the condition of the petitioner making payment of cost of Rs.50,000/-
to the respondent to be paid within a period of two weeks from today.
21. Needless to observe that all contentions of the respondent on
facts and law in regard to the legality and validity of the decree of divorce
dated 29 August 2013 of the Dubai Court and to defend all the issues as
being urged by the petitioner on the said basis are expressly kept open to
be urged before the family Court.
22. The petition is allowed in the aforesaid terms. No costs.
WRIT PETITION NO.12863 of 2017
23. This petition challenges the order dated 5 October 2017
passed by the learned Principal Judge, Family Court, Mumbai, whereby
the application filed by the petitioner for withdrawing a joint pursis filed
by the petitioner alongwith the respondent on 25 June 2015, stands
rejected.
24. On the initial background as noted in the above judgment, it
so happened that the petitioner and the respondent had earlier placed on
record of the Family Court a joint pursis, which reads as under:-
" In the Family Court at Mumbai
Pet No.A 19279 of 2013
Janhvi Kondia ...Petitioner
vs.
Vishal Kondia ...Respondent
May it please your Honour.
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Both parties have agreed to take divorce by
consent. (Decree for Divorce has been passed by the UAE Court)
The questions of maintenance be decided by the Hon'ble Court,
alimony and access to the children. Till date the children have
been maintained by the Respondent. The Respondent undertake
not to part with or dispose of the properties standing in joint
names or single names.
Dated this 25th June 2015.
Some contents of the first paragraph of the said pursis were scored of as
indicated above. It is thought appropriate to refer to the said joint pursis
as it stood, also indicating the scored off sentence in the first paragraph.
25. It has so transpired that after the petitioner's application
under Section 9A of the CPC was rejected by the Family Court by an order
dated 5 May 2017 by the Family Court, the petitioner moved an
application below Exhibit 45 dated 20 January 2017 praying that the
petitioner be allowed to withdraw the joint pursis dated 25 June 2015. In
this application, the petitioner interalia contended that the said joint
pursis dated 25 June 2015 was filed by the petitioner alongwith the
petitioner, for divorce by mutual consent, on an erroneous legal advice
given to him by his former lawyer. The petitioner stated that he was not
made to understand the full implications of signing of the said pursis and
the petitioner had signed the same without complete and clear knowledge
of its legal implications. The petitioner stated that therefore, his consent
was obtained under lack of complete information and having not been
made aware of the consequences, and therefore he desired to withdraw
the said pursis.
26. This application of the petitioner was opposed by the
respondent interalia stating that the petitioner was well educated and a
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wise businessman and that the pursis was signed by the petitioner and the
respondent as both wanted divorce. The respondent's petition was for
divorce as also the petitioner's case is that divorce was granted by the
Dubai Court. The respondent contended that the divorce petition before
the Dubai Court was decreed ex-parte and the decree was not binding on
her.
27. The family Court by the impugned order held that it was the
petitioner's contention that Dubai Court had decreed the petitioner's
divorce petition ex-parte. It was observed that the petitioner had filed
application in question on 11 July 2017 and the decree of divorce was
dated 29 August 2013, the petitioner was well aware of this petition
before Dubai Court, as also he knew about the ex-parte decree of divorce.
Being a well educated and a wise businessman the wording of the pursis
were not very difficult for the petitioner to understand, the petitioner
cannot put a blame on the lawyers. The petitioner's application for these
reasons was rejected. It would be relevant to note the relevant
observations in the impugned order:-
"4. In this short application the respondent states that he
acted on the erroneous legal advice from his former lawyer. The
respondent had filed a divorce petition before Dubai Court which
according to the petitioner is decreed ex-parte and therefore, not
binding upon her. Petitioner filed the instant petition on
11.7.2017 and the decree of Dubai Court is dated 29.8.2013.
Before appearing in this Court the respondent was well aware of
his petition before Dubai Court. He also knew about the ex-parte
decree of divorce. The wordings of the pursis are very simple. For
the well educated worldly wise businessman, the wordings of
pursis are not very difficult too understand. The respondent now
cannot revert by putting the blame on another lawyer.
Hence, the ordere:-
:O R D E R:
1. Application Exh.45 is rejected.
2. No order of costs."
28. Learned Counsel for the petitioner in assailing the impugned
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order would contend that the Family Court has completely overlooked the
legal position in rejecting the petitioner's application for withdrawal of the
consent as contained in the pursis. It is submitted that a simplicitor
consent of either of the parties as contained in the pursis, was of no
consequence in the matrimonial proceedings. It is submitted that the
impression of the family Court that the consent pursis is sacrosanct and
would bind the petitioner for a divorce decree by mutual consent to be
passed by the Court under Section 28 of the Special Marriage Act, 1954
or 13-B of the Hindu Marriage Act, would not stand the scrutiny of law
when tested on the anvil of the said statutory provisions.
29. Learned Counsel for the petitioner submits that Section 28 of
the Special Marriage Act and Section 13-B of the Hindu Marriage Act,
which provide for divorce by mutual consent interalia stipulate
requirement of a joint petition and only on satisfaction of the
requirements specified by Section 34 of the Special Marriage Act and
Section 23 of the Hindu Marriage Act in regard to free consent of the
parties, the Court would proceed to pronounce a decree. It is submitted
that a plain reading of the pursis itself clearly indicate that except for the
consent for divorce, the prayers in regard to the maintenance, alimony
and access to the children were kept at large to be adjudicated in the
pending proceedings. It is thus submitted that merely the petitioner
agreeing for a divorce in the following words as contained in the pursis
that "both parties have agreed to take divorce by consent" itself is was of no
consequence, unless the petitioner was to take further steps which would
comply the requirement of law to act upon such consent. However, the
petitioner had not acted upon the said consent and had decided to contest
the proceedings. The petitioner therefore, could not have been precluded
from withdrawing such consent, as recorded in the joint pursis. It is
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submitted that in any event the petitioner even if had agreed, to take
divorce by consent as recorded in the said pursis, under no provision of
law the Court can proceed to pass an order granting decree of divorce on
the pursis merely recording such consent of the petitioner. In support of
this submission, learned Counsel for the petitioner has placed reliance on
the following decisions: "Smt.Sureshta Devi Vs.Om Prakash" 9; "Hitesh
Bhatnagar Vs. Deepa Bhatnagar"10; and "Bharti Bhausaheb Aher Vs.
Bhausaheb Kautik Aher"11.
30. On the other hand, learned Counsel for the respondent would
submit that the entire basis for withdrawal of the consent in the joint
pursis is on the sole ground that a decree for divorce was passed by Dubai
Court which itself was invalid and illegal having passed ex-parte. It is
submitted that the whole intention of the petitioner is to avoid payment of
alimony and maintenance and to avoid providing permanent residence to
the respondent at Mumbai. It is submitted that the conduct of the
petitioner itself is completely inconsistent and contradictory, as on one
hand the petitioner contends that there is a divorce between the parties by
virtue of decree of divorce of the Dubai Court and on the other hand the
petitioner intends to withdraw the consent as made by him of his free will
in the joint pursis. According to the learned Counsel for the respondent,
the consequence of the joint pursis is that the scope of adjudication in the
matrimonial proceedings would be confined only to the issue of alimony,
maintenance and the right of the respondent to have permanent residence
at Mumbai. However, now to deprive the petitioner from all the legitimate
entitlements, the petitioner now dubiously intends to contest the grant of
a divorce decree by the Family Court at Bombay. This is a stand
9 (1991)2 SCC 25
10 (2011)5 SCC 234
11 2017(3) Mh.L.J. 264
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completely divergent and obverse from the conduct of the petitioner
supporting the decree of divorce granted by Dubai Court. It is submitted
that none of the decisions as relied on behalf of the petitioner are
applicable inasmuch as in all these decision, the parties wanted to stay in
matrimony. However, this a case where both the parties intend a divorce.
Learned Counsel for the respondent has justified the impugned order to
contend that the family Court has rightly rejected the petitioner's
application for withdrawal of the consent for a consent divorce decree.
31. I have heard the learned Counsel for the parties. The issue
which has arisen for consideration is a short but interesting issue. The
question is as to what is the legal sanctity of the petitioner recording his
willingness for the following statement made in the joint pursis :-
"Both parties have agreed to take divorce by consent"
As noted above, if the parties were to abide by the aforesaid statement
then the scope of adjudication of the matrimonial petition would be
confined only on the question of maintenance, alimony and access to the
children and it could have been presumed that the parties would take
further steps to obtain a divorce by mutual consent. It is not in dispute
that the parties profess Hindu religion. However, the parties got married
under the provisions of Special Marriage Act on 20 May 1999. In this
context the respondent has made the following prayer for a decree of
divorce:-
"a) This Hon'ble Court be pleased to dissolve the marriage
between the Petitioner and the Respondent solemnized on 20 th
May 1999 by a decree of divorce under section 27(1)(d) and
Section 36 and 37 of the Special Marriage Act,1954;"
Section 28 of the Special Marriage Act,1954 provides for divorce by
mutual consent. Section 28 of the Special Marriage Act reads thus:-
"28. Divorce by mutual consent.--
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(1) Subject to the provisions of this Act and to the rules made
thereunder, a petition for divorce may be presented to the district
court by both the parties together on the ground that they have
been living separately for a period of one year or more, that they
have not been able to live together and that they have mutually
agreed that the marriage should be dissolved.
(2) [On the motion of both the parties made not earlier than six
months after the date of the presentation of the petition referred
to in sub-section (1) and not later than eighteen months] after the
said date, if the petition is not withdrawn in the meantime, the
district court shall, on being satisfied, after hearing the parties
and after making such inquiry as it thinks fit, that a marriage has
been solemnized under this Act, and that the averments in the
petition are true, pass a decree declaring the marriage to be
dissolved with effect from the date of the decree."
(emphasis supplied)
Section 34 of the Special Marriage Act provides for the duty of the Court
in passing decrees, and reads thus:-
34. Duty of court in passing decrees.--
(1) In any proceeding under Chapter V or Chapter VI, whether
defended or not, if the court is satisfied that,--
(a) any of the grounds for granting relief exists; and
(b) [where the petition is founded on the ground specified in
clause (a) of sub-section (1) of section 27, the petitioner has not in
any manner been accessory to or connived at or condoned the act
of sexual intercourse referred to therein], or, where the ground of
the petition is cruelty, the petitioner has not in any manner
condoned the cruelty; and
(c) when divorce is sought on the ground of mutual consent, such
consent has not been obtained by force, fraud or undue influence;
and
(d) the petition is not presented or prosecuted in collusion with the
respondent; and
(e) there has not been any unnecessary or improper delay in
instituting the proceedings; and
(f) there is no other legal ground why the relief should not be
granted; then, and in such a case, but not otherwise, the court shall
decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act it shall
be the duty of the court in the first instance, in every case where it
is possible so to do consistently with the nature and circumstances
of the case, to make every endeavour to bring about a
reconciliation between the parties:
[Provided that nothing contained in this sub-section shall
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apply to any proceeding wherein relief is sought on any of the
grounds specified in clause (c), clause (e), clause (f), clause (g)
and clause (h) of sub-section (1) of section 27.]
[(3) For the purpose of aiding the court in bringing about such
reconciliation, the court may, if the parties so desire or if the court
thinks it just and proper so to do, adjourn the proceedings for a
reasonable period not exceeding fifteen days and refer the matter
to any person named by the parties in this behalf or to any person
nominated by the court if the parties fail to name any person, with
directions to report to the court as to whether reconciliation can be
and has been, effected and the court shall in disposing of the
proceeding have due regard to the report.
(4) In every case where a marriage is dissolved by a decree of
divorce, the court passing the decree shall give a copy thereof free
of cost to each of the parties.]"
(emphasis supplied)
32. Similar are the provisions of section 13 B and Section 23 of
the Hindu Marriage Act. A conjoint reading of Section 28 and Section 34
of the Special Marriage Act, shows that the parties can pray for a decree of
divorce by mutual consent on a joint petition to be presented by both the
parties interalia satisfying the requirement of sub section (1) of Section 28
namely specifying the ground that the parties have been living separately
for a period of one year or more and they have not been able to live
together and that they have mutually agreed that the marriage should be
dissolved. Thus, there is a necessity of a joint petition to be filed by the
parties before the Court. Once such a petition is presented then the
provisions of sub-section 2 stipulates that on a 'motion of both the parties'
made not earlier than six months after the date of presentation of petition
as presented under sub-section (1) and not later than eighteen months
after the said date if the petition is not withdrawn in the meantime, the
court shall, 'on being satisfied', 'after hearing the parties and after making
such inquiry as it thinks fit', that a marriage has been solemnized under
this Act and 'that the averments in the petition are true', pass a decree
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declaring the marriage to be dissolved with effect from the date of the
decree. Section 34(1)(c) provides that when divorce is sought by mutual
consent, such consent has not been obtained by force, fraud or undue
influence. Further Section 34(1)(f) also requires the Court to consider that
there is no other legal ground why the relief should not be granted. These
are the considerations to be borne in mind before a decree of divorce is
granted. The contents of Section 28 of the Special Marriage Act are pari
materia to the provisions of Section 13B of the Hindu Marriage Act. In
Smt.Sureshta Devi Vs.Om Prakash (supra) the question which fell for
determination of the Supreme Court was whether it was open for one of
the parties at any time till the decree of divorce is passed to withdraw the
consent given to the petition. There was cleavage of opinion of the High
Courts on this issue. The Supreme Court interpreting Section 13B of the
Hindu Marriage Act held that mere filing of the petition with a mutual
consent does not authorise the court to make a decree of divorce for more
than one reason, namely that that there may be change of circumstances
in the transitional period. The spouse may not be a party to the joint
motion as provided by sub-section (2) of Section 13B and nothing in the
section would prevent the party in taking such course. It is observed that
sub-section (2) of Section 13B requires the Court to hear the parties which
would mean both the parties and if one of the parties at that stage says
that "I have withdrawn my consent", or "I am not a willing party to the
divorce", the court cannot pass a decree of divorce by mutual consent. If
the court is held to have the power to make a decree solely based on the
intial petition, it negates the whole intent of mutuality and consent for
divorce, as mutual consent to the divorce is a sine qua non for passing a
decree for divorce under Section 13-B and the mutual consent should
continue till the divorce decree is passed. It would be necessary to note
the observations of the Supreme Court as made in paragraphs 13 and 14
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which read thus:-
"13. From the analysis of the Section, it will be apparent that
the filing of the petition with mutual consent does not authorise
the court to make a decree for divorce. There is a period of
waiting from 6 to 18 months. This interregnum was obviously
intended to give time and opportunity to the parties to reflect on
their move and seek advice from relations and friends. In this
transitional period one of the parties may have a second thought
and change the mind not to proceed with the petition. The spouse
may not be party to the joint motion under sub-section (2). There
is nothing in the Section which prevents such course. The Section
does not provide that if there is a change of mind it should not be
by one party alone, but by both. The High Courts of Bombay and
Delhi have proceeded on the ground that the crucial time for
giving mutual consent for divorce is the time of filing the petition
and not the time when they subsequently move for divorce
decree. This approach appears to be untenable. At the time of the
petition by mutual consent, the parties are not unaware that their
petition does not by itself snap marital ties. They know that they
have to take a further step to snap marital ties. Sub- section (2) of
Section 13-B is clear on this point. It provides that "on the motion
of both the parties .... if the petition is not withdrawn in the
meantime, the Court shall ....pass a decree of divorce....". What is
significant in this provision is that there should also be mutual
consent when they move the court with a request to pass a decree
of divorce. Secondly, the Court shall be satisfied about the
bonafides and the consent of the parties. If there is no mutual
consent at the time of the enquiry, the court gets no jurisdiction to
make a decree for divorce. If the view is otherwise, the Court
could make an enquiry and pass a divorce decree even at the
instance of one of the parties and against the consent of the other.
Such a decree cannot be regarded as decree by mutual consent.
14. Sub-section (2) requires the Court to hear the parties
which means both the parties. If one of the parties at that stage
says that "I have withdrawn my consent", or "I am not a willing
party to the divorce", the Court cannot pass a decree of divorce by
mutual consent. If the Court is held to have the power to make a
decree solely based on the initial petition, it negates the whole
idea of mutuality and consent for divorce. Mutual consent to the
divorce is a sine qua non for passing a decree for divorce under
Section 13-B. Mutual consent should continue till the divorce
decree is passed. It is a positive requirement for the court to pass
a decree of divorce. "The consent must continue to decree nisi and
must be valid subsisting consent when the case is heard". [See (i)
Halsbury Laws of England, Fourth Edition Vol. 13 para 645; (ii)
Rayden on Divorce, 12th Ed. Vol. 1 p. 291 and (iii) Beales v.
Beales, [ 1972] 2 All E.R. 667 at 674]."
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33. In Hitesh Bhatnagar Vs. Deepa Bhatnagar (supra) the
Supreme Court has held that the most important requirement for a grant
of a divorce by mutual consent is free consent of both the parties and
unless there is a complete agreement between husband and wife for the
dissolution of the marriage and unless the court is completely satisfied, it
cannot grant a decree for divorce by mutual consent. The law as laid
down in paragraph 14 of the decision read thus:-
"The language employed in Section 13B(2) of the Act is clear. The
Court is bound to pass a decree of divorce declaring the marriage
of the parties before it to be dissolved with effect from the date of
the decree, if the following conditions are met:
a. A second motion of both the parties is made not before 6
months from the date of filing of the petition as required under
sub- section (1) and not later than 18 months;
b. After hearing the parties and making such inquiry as it thinks
fit, the Court is satisfied that the averments in the petition are true;
and c. The petition is not withdrawn by either party at any time
before passing the decree;
In other words, if the second motion is not made within the period
of 18 months, then the Court is not bound to pass a decree of
divorce by mutual consent. Besides, from the language of the
Section, as well as the settled law, it is clear that one of the parties
may withdraw their consent at any time before the passing of the
decree. The most important requirement for a grant of a divorce
by mutual consent is free consent of both the parties. In other
words, unless there is a complete agreement between husband and
wife for the dissolution of the marriage and unless the Court is
completely satisfied, it cannot grant a decree for divorce by
mutual consent. Otherwise, in our view, the expression `divorce
by mutual consent' would be otiose."
34. The Division Bench of this Court of which I was a member, in
Bharti Bhausaheb Aher Vs. Bhausaheb Kautik Aher (supra)
considering the challenge to an order of the Family Court where the family
Court pronounced a decree of divorce merely on the consent terms,
without a petition being filed by the parties in compliance of Section 13B
of the Hindu Marriage Act, in the absence of a petition under Section 13B
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of the Hindu Marriage Act and in the absence of compliance of is
mandatory stipulations, only accepting the version of the respondent-
husband therein on an affidavit that the parties had decided and had
agreed to dissolve their marriage by mutual consent in terms of the
consent terms between the parties, held that the approach of the family
Court was illegal and in violation of Section 13B of the Hindu Marriage
Act. It was held that mere allowing husband's application to convert the
marriage petition in a petition by mutual consent under Section 13B is not
sufficient as it is necessary that requirements prescribed by Section 13B
are present in the averments/statements in the petition. The Division
Bench in paragraphs 18, 19 and 23 has held as under:-
"18. A plain reading of section 13B of the Act, makes it clear that
it is a provision for divorce by mutual consent. Parties can pray for
a decree of divorce by mutual consent on a joint petition by the
husband and wife and subject to the terms and conditions as
stipulated in the said provision. The principal requirement
therefore, is that the Court would consider whether the petition,
including a converted petition, satisfies the primary requirement
of section 13B of the Act. Further subsection (2) of section 13B
makes it clear that on such a Petition, the Court is required to
satisfy itself, after hearing the parties and only after making an
inquiry as it thinks fit, that the averments in the Petition are true,
pass a decree of divorce, declaring the marriage to be dissolved
with effect from the date of decree. Further section 23 (1) (bb) of
the Act is an additional safeguard as provided by the legislature in
decreeing petitions under section 13B of the Act. Subsection (1)
(bb) of section 23 provides that when parties are seeking a decree
of divorce by mutual consent, the Court is under an obligation to
to be satisfied that such consent has not been obtained by force,
fraud or undue influence.
19. In the facts of the present case, the learned Judge of the
Family Court has completely overlooked the mandate of the above
provisions. We say so for the reason that the learned Judge
proceeded to pronounce a decree without the Petition being
converted into a Petition, for decree of divorce by mutual consent
under section 13B of the Act and secondly without making any
inquiry as subsection (2) of section 13B read with section 23 (1)
(b) would provide, when admittedly the appellant was not
present before the Court on the date of the judgment. The scope
of the inquiry which was expected in law is that when the parties
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are seeking divorce by mutual consent, whether such a consent
was a free consent or was obtained by fraud, or undue influence.
In other words, whether the consent was a real consent is
required to be examined and tested by the learned Judge. The
non adherence to these basic mandate of law in our opinion is
sufficient, to set aside the impugned judgment and order.
....
23. In considering a petition for divorce by mutual consent under
section 13B of the Act, learned Judges of the Family Court shall
hear the parties before a judgment is to be pronounced and also
on consent terms/compromise, the parties may enter into, so as to
examine all the parameters of law touching the consent terms
including reasonableness of the consent terms. Further it shall
also be examined whether the consent is a free consent and the
same is not in any manner influenced by fraud, coercion, undue
influence as section 23 (i) (bb) would provide and accordingly
observations be made and recorded in the judgment. Section 23
(1) (bb) contemplates a free consent. It is well settled that fraud
is an act of deliberate deception with a design of securing
something by taking advantage of another. It would be a
deception to gain from another's loss and it would be cheating if
intended to get an advantage. These are very crucial parameters
which are required to be very meticulously considered by the
Court before pronouncing the decree of divorce by mutual
consent exercising jurisdiction under section 13B read with
section 23 (1) (bb) of the Act. Only after such a procedure is
followed there would be complete compliance of section 13B and
section 23 (i) (bb) of the Act."
35. Adverting to the above principles of law it cannot be said that
there was any legal bar for the petitioner to withdraw his consent as
recorded in the pursis when the pursis referred that "both the parties
have agreed to take divorce by consent." In any event if at all the parties
were to maintain their consent for divorce as stated in the pursis, then the
requirement of law was that the parties, would present an appropriate
application by complying necessary requirements provided by Section 28
of the Special Marriage Act and seek a decree of divorce by mutual
consent. However, before such an application/petition could be
presented, the petitioner intended to withdraw his consent by the
application on which the impugned order is passed. In my opinion,
considering the aforesaid clear position in law there was no legal
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impediment for the petitioner to withdraw his consent as recorded in the
pursis. The petitioner having withdrawn his consent, the necessary
consequence would be that the family Court would be required to proceed
and adjudicate the petition on the issue of divorce on all the grounds
which are available to the parties. Thus, considering the requirement of
law it was not proper and appropriate for the family Court to reject the
application of the petitioner to withdraw the joint pursis dated 25 July
2015. The impugned order is manifestly illegal.
36. Apart from the above clear legal position, the Court cannot
overlook that the situation in the present case is not akin to the situation
as fell for consideration of the Supreme Court and this Court in the above
referred decisions in which one of the parties intended to remain in
matrimony. This is a peculiar case where the petitioner as noted above
has intended to assert that the marriage between the petitioner and
respondent stands dissolved by a decree dated 29 August 2013 of the
Dubai Court. The contention as urged on behalf of the respondent is that
even if the petitioner intended to formally resile or abandon his consent,
such resilience cannot be accepted as bonafide or truthful gesture on the
part of the petitioner for the reason that the petitioner has continued to
contend that the parties are already divorced in view of the decree passed
by the Dubai Court and so far as the petitioner continues to assert this
position, it will be required to be presumed that there is no other intention
of the petitioner but to ultimately have a position that the marriage
between the petitioner and the respondent is dissolved. Considering the
strange and peculiar stand as taken by the petitioner namely that on one
hand the petitioner asserts that the marriage between the petitioner and
respondent stands dissolved in view a decree passed by the Dubai Court
being a court of competent jurisdiction and on the other hand not to agree
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for a decree of divorce before the family Court, certainly are the issues
which would require due consideration as pointed out on behalf of the
respondent. However, considering the limited scope of this petition, it may
not be appropriate in these proceedings for this Court to delve on this
issue. It would be open to the parties to urge all contentions on merits of
their respective pleas. These contentions are expressly kept open. Needless
to observe that the family Court would adjudicate on the matrimonial
petition on its own merit and in accordance with law.
37. In view of the above observations, the Writ Petition is allowed
in terms of prayer clause (a). No order as to costs.
(G. S. KULKARNI, J.)
