Bombay High Court
Aniket Arun Dhatrak (Died) Thr Lrs. ... vs Shalaka Aniket Dhatrak on 1 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:16269-DB
1 FCA / 37 / 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO. 37 OF 2023
Aniket Arun Dhatrak
Died Through
1] Rajashree Arun Dhatrak (Mother)
Age : 56 years, Occupation : Household,
2] Abhijeet Arun Dhatrak (Brother)
Age : 32 years, Occupation : Service,
3] Anurag Arun Dhatrak (Brother),
Age : 28 years, Occupation : Agriculture
All Residents of : 108, Income Tax Colony,
Nakane Road, Deopur, Dhule
Presently at : 301, Shubham Residency,
Postal Colony, Dattamandir Road,
Wakad, Pune .. Applicants
Versus
Shalaka Aniket Dhatrak
Age : 27 years, Occupation : Housewife,
Resident of : C/o. Deepak Ramchandra Naik,
Gala No. 6, Near Rani Medical,
Dhule .. Respondent
...
Advocate for appellants : Mr. Mukul S. Kulkarni
Advocate for the respondent : Mr. Subodh P. Shah
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 24 JULY 2024
PRONOUNCED ON : 01 AUGUST 2024
JUDGMENT (MANGESH S. PATIL, J.) :
Admit.
2 FCA / 37 / 2023
2. At the joint request of the parties, we have heard both the
sides finally at the stage of admission.
3. We had been called upon to decide a very interesting
issue, as to whether the right to sue survives to the mother and
brothers of the deceased husband of the respondent - wife in a petition
for divorce by mutual consent filed under section 13-B of the Hindu
Marriage Act, 1955 ('Act'), when he dies even before the second
motion under sub section (2) of section 13-B of the Act is moved.
4. The facts can be stated in brief as under:
i) Deceased (hereinafter referred to as 'Aniket') and
respondent - Shalaka submitted a petition for divorce by mutual
consent on 14-10-2020.
ii) Pursuant to some mutual agreement, Aniket had agreed to
pay Rs.5,00,000/- to Shalaka while filing of petition as per terms he
paid Rs.2,50,000/- to her.
iii) Unfortunately, Aniket died during COVID - 19 on 15-04-
2021.
iv) Respondent - Shalaka submitted a purshis (Exhibit - 8) on
28-04-2021, withdrawing the consent for granting divorce and
requested for disposing of the petition.
3 FCA / 37 / 2023
v) However, the appellants herein who are the mother and
brothers of Aniket submitted application (Exhibit - 15) purportedly
under Order XXII Rule 3 of the Code of Civil Procedure and requested
for an order for allowing them to be brought on record as his legal
heirs. Respondent - Shalaka opposed the application stating that the
cause of action did not survive.
vi) Even before the impugned order was passed, Advocate
D.G. Patil of Dhule Bar Association apparently un-connected with either
of the sides, submitted an application (Exhibit - 17) stating that father
of Aniket had handed over Rs.2,50,000/- to him for being paid at the
time of final decision. The Family Court permitted him to deposit it and
accordingly, the amount was deposited in Court on 21-09-2021.
vii) The appellants submitted application (Exhibit - 19),
soliciting a direction to respondent - Shalaka, to re-deposit the amount
of Rs.2,50,000/- received by her on 14-10-2020 as per the consent
terms filed on record. Respondent - Shalaka opposed that application
as well.
viii) Accordingly, the learned Judge of the Family Court heard
both the sides and by a common order under challenge, refused
permission to the appellants to come on record as legal heirs of
deceased Aniket and as requested by the respondent - Shalaka,
disposed of the petition for divorce. Even the appellants' request for
4 FCA / 37 / 2023
direction to her to re-deposit the money i.e. Rs.2,50,000/- was
rejected. Hence, this Appeal.
5. Learned advocate Mr. Kulkarni for the appellants would
take us through the provisions of section 13-B of the Act and would
submit that though the right to seek a divorce is a personal right and
would not survive to the legal heirs. However, pursuant to the terms of
settlement, respondent - Shalaka was paid an amount of Rs.2,50,000/-
and merely a procedural compliance was to be made by moving a
second motion under sub-section (2) of section 13-B of the Act. Since
substantial part that was to be performed by deceased - Aniket was
already performed, in the light of division bench decision of this Court
in the matter of Prakash Alumal Kalandari V. Jahnavi Prakash
Kalandari; AIR 2011 Bom. 119, the request of respondent - wife
seeking to withdraw her consent would tantamount to her unjust and
inequitable enrichment and deceased - Anikat had earned the right to
seek divorce by mutual consent.
6. Mr. Kulkarni would also seek to rely upon the decisions in
the matters of Yallawwa v. Shantavva; (1997) 11 SCC 159 and three
decisions of Single Judges of this Court in; i) Jayshree Ramesh
Londhe Vs. Ramesh Bhikaji Londhe; AIR 1986 Bom. 302,
(ii)Kamalabai V. Ramdas Manga Ingale; AIR 1981 BOM. 187 and
(iii) Lubhan Gopal Nikhare Vs. Sandhya; 2012(3) Mh.L.J. 378.
5 FCA / 37 / 2023
7. Mr. Kulkarni would submit that respondent - Shalaka had
merely submitted a purshis Exhibit - 8, without seeking to make out
any ground as contemplated under section 23 of the Act, whereby
exception could have been taken on the ground that her consent was
vitiated by coercion, fraud or undue influence.
8. Per contra, the learned advocate for respondent - wife -
Shalaka would submit that admittedly, a mandatory second motion, as
contemplated under sub section (2) of section 13-B of the Act was
never moved. No right had accrued in deceased - Aniket which could
have survived to the appellants. The right to seek divorce is a personal
right. No decree for divorce was ever passed and the appellants could
not have been legally allowed to prosecute the cause after demise of
Aniket. Right to sue did not continue beyond the lifetime of appellant -
Aniket and, therefore, no fault can be found in the impugned order in
refusing permission to the appellants to come on record.
9. Mr. Shah would submit that the decision in the matter of
Yallawwa (supra) would rather operate against the appellants. The
issue was considered even in the matters of (i) Sureshta Devi V. Om
Prakash; (1991) 2 SCC 25, (ii) Hitesh Bhatnagar V. Deepa
Bhatnagar; (2011) 5 SCC 234 and (iii) Kimti Lal V. Indu Kundra;
1999 (50) DRJ 459 (Delhi High Court). He would submit that Hitesh
6 FCA / 37 / 2023
Bhatnagar (supra) has even considered the aspect of withdrawal of
consent by either side beyond the period of 18 months. He would
submit that it has been held that a party can withdraw the consent till
the moment a decree for divorce is passed even beyond the period of
18 months.
10. We have considered the rival submissions and perused
the papers. There is not much of dispute on facts.
11. It would be appropriate to reproduce section 13-B of the
Act, which reads as under :
"Section 13-B. Divorce by mutual consent.--
(1) Subject to the provisions of this Act a petition for dissolution
of marriage by a decree of divorce may be presented to the
district court by both the parties to a marriage together, whether
such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976
(68 of 1976) 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 court shall, on being satisfied, after hearing the parties and
after making such inquiry as it thinks fit, that a marriage has
been solemnized and 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 the decree."
12. A bare reading of entire section 13-B makes it abundantly
clear that submission of second motion under sub section (2) is a
7 FCA / 37 / 2023
condition precedent for passing a decree of divorce. It is only on
making of such a motion by both the sides, the Court can proceed for
hearing both the sides and can undertake requisite enquiry as deemed
necessary. Upon its satisfaction that the marriage was solemnized and
the averments in the petition were true that it can pass the decree.
Keeping aside the aspect of the period mentioned in sub-section (2), it
is only on the basis of a motion, that the Court would get the jurisdiction
to undertake further enquiry for reaching its decision about
performance of marriage and the contents of the petition. It is not
automatic. In other words, even after filing of a petition for divorce by
mutual consent, if no motion is moved by the parties jointly, there would
be no question of Court undertaking any further enquiry. It cannot
happen at the instance of only one of the spouses.
13. Suffice for the purpose to refer to the decision in the matter
of Hitesh Bhatnagar (supra), which in turn referred to and relied upon
the following observations from Sureshta Devi (supra):
"9. The 'living separately' for a period of one year should be
immediately preceding the presentation of the petition. It is
necessary that immediately preceding the presentation of
petition, the parties must have been living separately. The
expression 'living separately', connotes to our mind not living
like husband and wife. It has no reference to the place of living.
The parties may live under the same roof by force of
circumstances, and yet they may not be living as husband and
wife. The parties may be living in different houses and yet they
could live as husband and wife. What seems to be necessary is
that they have no desire to perform marital obligations and with
that mental attitude they have been living separately for a
period of one year immediately preceding the presentation of
the petition. The second requirement that they 'have not been
able to live together' seems to indicate the concept of broken
8 FCA / 37 / 2023
down marriage and it would not be possible to reconcile
themselves. The third requirement is that they have mutually
agreed that the marriage should be dissolved.
10. Under sub-section (2) the parties are required to make a
joint motion not earlier than six months after the date of
presentation of the petition and not later than 18 months after
the said date. This motion enables the court to proceed with the
case in order to satisfy itself about the genuineness of the
averments in the petition and also to find out whether the
consent was not obtained by force, fraud or undue influence.
The court may make such inquiry as it thinks fit including the
hearing or examination of the parties for the purpose of
satisfying itself whether the averments in the petition are true. If
the court is satisfied that the consent of parties was not
obtained by force, fraud or undue influence and they have
mutually agreed that the marriage should be dissolved, it must
pass a decree of divorce.
....
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 a 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 bona fides 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
9 FCA / 37 / 2023
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. Incidentally, in Hitesh Bhatnagar (supra), it was noticed
that a two Judge bench in Ashok Hurra Vs. Rupa Bipin
Zaveri; (1997) 4 SCC 226 had expressed a view that observations in
Sureshta Devi (supra) were too wide and did not logically accord with
section 13-B(2). The observations in Ashok (supra) were held to be
not ratio decidendi.
15. Rather, Hitesh Bhatnagar (supra) referred to a three
Judge bench decision in the matter of Smruti Pahariya Vs. Sanjay
Pahariya; (2009) 13 SCC 338 and it was observed that the ratio laid
down in Sureshta Devi (supra) was approved in Smruti Pahariya, it
relied upon following paragraphs from Smruti Pahariya (supra) :
"40. In the Constitution Bench decision of this Court in Rupa
Ashok Hurra [(2002) 4 SCC 388] this Court did not express any
view contrary to the views of this Court in Sureshta Devi [(1991)
2 SCC 25]. We endorse the views taken by this Court in
Sureshta Devi, as we find that on a proper construction of the
provision in Sections 13-B(1) and 13-B(2), there is no scope of
doubting the views taken in Sureshta Devi. In fact the decision
which was rendered by the two learned Judges of this Court in
Ashok Hurra [(1997) 4 SCC 226] has to be treated to be one
rendered in the facts of that case and it is also clear by the
observations of the learned Judges in that case.
41. None of the counsel for the parties argued for
reconsideration of the ratio in Sureshta Devi.
42. We are of the view that it is only on the continued mutual
consent of the parties that a decree for divorce under Section
13-B of the said Act can be passed by the court. If petition for
divorce is not formally withdrawn and is kept pending then on
the date when the court grants the decree, the court has a
10 FCA / 37 / 2023
statutory obligation to hear the parties to ascertain their
consent. From the absence of one of the parties for two to three
days, the court cannot presume his/her consent as has been
done by the learned Family Court Judge in the instant case and
especially in its fact situation, discussed above.
43. In our view it is only the mutual consent of the parties which
gives the court the jurisdiction to pass a decree for divorce
under Section 13-B. So in cases under Section 13-B, mutual
consent of the parties is a jurisdictional fact. The court while
passing its decree under Section 13-B would be slow and
circumspect before it can infer the existence of such
jurisdictional fact. The court has to be satisfied about the
existence of mutual consent between the parties on some
tangible materials which demonstrably disclose such consent."
Referring to all these, the following were the conclusions drawn in
Hitesh Bhatnagar (supra):
"14. The language employed in Section 13-B(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.
11 FCA / 37 / 2023
15. In the present fact scenario, the second motion was never
made by both the parties as is a mandatory requirement of the
law, and as has been already stated, no court can pass a
decree of divorce in the absence of that. The non-withdrawal of
consent before the expiry of the said eighteen months has no
bearing. We are of the view that the eighteen-month period was
specified only to ensure quick disposal of cases of divorce by
mutual consent, and not to specify the time period for
withdrawal of consent, as canvassed by the appellant."
16. In view of such an emphatic decision on the issue, when
admittedly, Aniket died even before the couple moved the second
motion under sub-section (2) of section 13-B of the Act, as has been
correctly observed by the learned Judge in the impugned order, the
petition itself had become infructuous.
17. In our considered view, even Yallawa (supra) would weigh
against the appellants. In that matter, the husband had succeeded in
obtaining the divorce decree against the wife ex parte. He thereafter
died and the issue was, as to whether after his demise, the wife can file
an application for setting aside ex parte decree under Order IX Rule 13
of the Code of Civil Procedure against the legal heirs of the deceased
husband. After reaching the conclusion, it was observed in paragraph
no. 10, as under :-
"10. Now remains the question as to whether the proceedings
for divorce as restored by the High Court by its impugned order
are required to be proceeded further or the curtain must be
dropped on the said proceedings. As the ex parte decree is
found to be rightly set aside by the High Court, the marriage
petition would automatically stand restored on the file of the
learned trial Judge at the stage prior to that at which they stood
when the proceedings got intercepted by the ex parte decree.
Once that happens it becomes obvious that the original
petitioner seeking decree of divorce against the wife being
12 FCA / 37 / 2023
no longer available to pursue the proceedings now, the
proceedings will certainly assume the character of a
personal cause of action for the deceased husband and
there being no decree culminating into any crystallized
rights and obligations of either spouse, the said
proceedings would obviously stand abated on the ground
that right to sue would not survive for the other heirs of the
deceased husband to get any decree of divorce against the
wife as the marriage tie has already stood dissolved by the
death of the husband. No action, therefore, survives for the
court to snap such a non-existing tie, otherwise it would be
like trying to slay the slain. At this stage there remains no
marriage to be dissolved by any decree of divorce.
Consequently, now that the ex parte decree is set aside, no
useful purpose will be served by directing the trial court to
proceed with the Hindu marriage petition by restoring it to its file.
The Hindu Marriage Petition No. 25 of 1989 moved by Shri
Basappa, the husband of the respondent on the file of the Court
of Civil Judge, Gadag will be treated to have abated and shall
stand disposed of as infructuous. The appeal is disposed of
accordingly. In the facts and circumstances of the case, there
will be no order as to costs." (emphasis supplied).
18. These observations would clearly operate against the
appellants and since the right to seek divorce was a personal right of
deceased Aniket and the principle being actio personalis moritur cum
persona, cause of action would not survive to the appellants and the
petition for divorce by mutual consent would stand abated as has been
correctly concluded by the learned Judge in the impugned order.
19. So far as the division bench judgment in Prakash
Kalandari (supra) is concerned, the fact situation was clearly different.
A petition for divorce was filed which was initially not a petition for
divorce by mutual consent as contemplated under section 13-B of the
Act. The parties had arrived at a compromise before a counsellor in
terms of rule 31 of the Family Courts (Marriage Rules), 1987, which
13 FCA / 37 / 2023
were framed under section 21 of the Family Courts Act, which enabled
the Court to pronounce the decree on the basis of the consent terms
reduced into writing and signed by the parties unless it were contrary to
the public policy. It was also noticed that substantial compliances were
made by one of the spouses and the consent was sought to be
withdrawn unilaterally by the other spouse without making out the
ground that it was obtained by coercion, fraud or undue influence as
contemplated under section 23.
20. The issue before us is peculiar. The question of
considering withdrawal of the consent by respondent, is not the matter.
In fact, admittedly, Aniket died on 15-04-2021 and the respondent
submitted the purshis Exhibit 8, withdrawing her consent and seeking
disposal of the petition on 28-04-2021.
21. Once having concluded as herein-above that moving of
motion under sub section (2) of section 13-B of the Act, is a sine qua
non for passing of a decree of divorce by mutual consent, when it was
not made in the present matter, such withdrawal of consent after
demise of Aniket was redundant since that second motion has to be a
joint motion. The appellants are not entitled to derive any benefit from
the decision in the matter of Prakash Alumal Kalandari (supra).
14 FCA / 37 / 2023
22. Once having reached such a conclusion, the appellants
being the heirs of deceased - Aniket, his mother and two brothers, they
have no right to come on record, even they would not get any right to
prefer an appeal under section 19 of the Family Courts Act.
23. We find no illegality in the order under challenge.
24. The Appeal is dismissed.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
