Chandan vs Dipti
2015 Latest Caselaw 471 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Date of hearing and order: 19th January 2015.

+     MAT.APP.(F.C.) 5/2015
      CHANDAN                                              ..... Appellant
                      Through:          Ms. Mukti Singh and Mr. Sunil
                                        Kumar Sinha, Advocates
                           versus
      DIPTI                                               ..... Respondent
                           Through:     None.
      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE I.S.MEHTA
                        ORDER

% KAILASH GAMBHIR, J. (ORAL)

C.M. Appl. No. 977/2015 & 979/2015 (Exemptions)

Exemption allowed subject to just exceptions.

Applications stand disposed of.

C.M. Appl. No. 976/2015 (condonation of delay)

By this application filed under Section 5 of the Limitation Act read

with Section 151, CPC, the appellant seeks condonation of delay of 35 days

in filing the accompanying appeal under Section 19(1) of the Family Courts

Act. For the reason stated in the application, the same is allowed and the

delay of 35 days in filing the accompanying appeal is condoned.

Application stands disposed of.

MAT. APP. (F.C.) No. 5/2015 & C.M. Appl. No. 978/2015 (Directions)

1. This is an appeal by the appellant-husband under section 19 (1) of the

Family Courts Act, 1984 calling in question the tenability of the judgment

dated 05.11.2014 passed by the learned District and Principal Judge, South-

West District, Family Court, Dwarka, New Delhi, whereby a joint petition

filed by the parties under Section 13- B of the Hindu Marriage Act, 1955

seeking dissolution of marriage by decree of divorce by mutual consent has

been dismissed.

2. The grievance raised by the appellant in the instant appeal is that the

respondent wife had agreed to file the joint divorce petition after having

fully gone through the contents of the same and only after prolonged and

detailed talks between the parties but thereafter failed to present herself

before the Family Court to give her statement. The learned counsel for the

appellant also submits that the disputes between the parties were settled with

the intervention of the Vasant Vihar Police Station, where the appellant -

husband had returned all the gift items to the respondent - wife and besides

that, he had paid a sum of Rs.5.5 lacs to the respondent. The learned counsel

for the appellant thus submits that having received the settled amount and

the gift items, the respondent took a somersault in not causing appearance

before the learned Family Court to give her statement in support of the joint

motion petition for oblique motives. Counsel further submits that in this

manner, the respondent is trying to subvert and misuse the law with malafide

intention to extort more money from the petitioner.

3. We have heard the submissions made by the learned counsel for the

appellant and have gone through the material on record.

4. Indisputably, the respondent - wife did not come forward to record

her statement before the learned Family Court after the joint divorce petition

was presented by them, at the stage of first motion. It is an admitted position

that no formal MOU or settlement was arrived at between the parties and

therefore, we find that the Family Court was correct in observing that it

can't give any finding as to under what circumstances the respondent had

backed out and not presented herself before the court. The learned Family

Court is also correct in observing that the court cannot force the respondent

- wife to give her statement in support of the petition. Section 13-B of the

Hindu Marriage Act, 1955 is a special provision where under the parties can

seek divorce by mutual consent. The expression 'mutual' cannot be diluted

and if any of the parties to the marriage fail to present herself or himself

before the court, after the presentation of the 1 st and the 2nd motion petitions,

then there will not be any mutuality in the act of the parties. Mere signing

and filing of the present petition by both the parties does not mean that the

parties need not present themselves before the court after filing the divorce

petition. The parties are necessarily required to appear before the court to

give their statements and then based on the statements and upon satisfaction

of the Court, first motion petition will be allowed. Thereafter, it is also

envisaged under the Act that after the expiry of six months, the second

motion petition for mutual consent divorce should be filed by the parties and

they are required to reappear before the Court. A gap of six months is given

between the two motions to afford the estranged couple adequate time to

reconsider their decision of dissolving their marriage. After hearing the

husband and wife, if the Court is satisfied that all the grounds and

requirements for the divorce have been met, the couple is granted a decree

of divorce by mutual consent. It is not the case of the appellant here that

under some agreement or MOU, the respondent had derived the benefits and

later turned around and resiled from the settlement. The learned Family

Court is correct in observing that it may not be in a position to find out the

circumstances due to which the respondent - wife did not come forward to

present herself to give her statement before the court. It is a settled legal

position that either of the parties to the petition may withdraw their consent,

at any time before a decree of divorce by mutual consent is passed. For a

decree of divorce by mutual consent to be passed, there needs to be a

complete agreement between the estranged couple for the dissolution of

marriage and the Court needs to be convinced about the same. Otherwise the

essence of the words "divorce by mutual consent" would be lost. [Ref :

Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234].

5. The judgments in the case of Jayshree Ramesh Londhe vs. Ramesh

Bhikhaji Londhe, AIR 1984 Bom. 302 passed by the High Court of

Judicature at Bombay and in the case of Chandra Kanta v. Hans Kumar,

AIR 1989 Del. 73, passed by this Court, as relied upon by the counsel for

the appellant have no relevance to the facts of the present appeal. However,

the Hon'ble Supreme Court in the case of Smt. Sureshta Devi vs. Om

Prakash, (1991) 2 SCC 25, held that the Court has no jurisdiction to pass a

decree of divorce by mutual consent, if there is no mutual consent at the

time of the inquiry. The Court needs to be satisfied about the bona fides and

the consent of the parties. The Court further went on to observe that the

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 persist till the

divorce decree is passed. The consent must continue to decree nisi and must

be valid and subsisting when the case is heard.

6. In the case at hand, though the parties had filed their joint petition

under Section 13-B of the Hindu Marriage Act, 1955, the respondent chose

not to appear before the Family Court during the first motion petition,

therefore, the learned Family Court was right in dismissing the joint petition

filed by the parties.

7. In view of the aforesaid discussion, we find no illegality or infirmity

in the impugned judgment dated 5.11.2014 passed by the learned District

and Principal Judge, South-West District, Family Court, Dwarka, New

Delhi. Finding no merit in the present appeal, the same is hereby dismissed.

Consequentially, the pending applications are also disposed of.

KAILASH GAMBHIR, J

I.S.MEHTA, J JANUARY 19, 2015 pkb