Mutual Divorce can be set aside if any Party contest

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO. 40 OF 2009

Sau. Sushama w/o Pramod Taksande,
Aged 30 years, Household,
r/o. C/o. Shri Wasudeo Shendre, Rani
Laxmibai Ward, Pandharkawada,
Tahsil Kelapur, District Yavatmal. … APPELLANT.

VERSUS

Shri Pramod s/o Ramaji Taksande,
Age 42 years, occupation Businessman,
Karanji Road, Tahsil Kelapur,
District Yavatmal. … RESPONDENT.

Mr. R.D. Bhuibar, Advocate for Appellant.
Mr. Anjan De, Advocate for Respondent.

CORAM : B.P. DHARMADHIKARI, J.

Date of Reserving Order. – 04.02.2009 Date of Pronouncement. – 17.03.2009

ORAL JUDGMENT.

1. The appellant before this Court is wife and she challenges judgment dated 6.12.2008 delivered by the District Judge -I, Pandharkawada, affirming the judgment dated 6.10.2008 passed by the Civil Judge, Senior Division, Pandharkawada (Kelapur). The Civil Judge, has in H.M.P. No.24/2008 presented under section 13[B] of Hindu Marriage Petition, dissolved marriage between the parties because of consent and the custody of two sons with father Pramod was continued as wife agreed not to seek the custody. It is also recorded that wife waived her right of maintenance. This order was challenged by wife in Regular Civil Appeal No. 68/2008 inter-alia contending that her signature on said petition and accompanying affidavits were obtained under false pretext and she was compelled to place her signature upon it. She contended that both the parties were residing together and there was no separation for a period of one year which is a mandatory requirement. The Lower Appellate Court has considered this ground and in paragraph no.7 found that petition was presented on 4.4.2008, parties were directed to remain present on 6.10.2008 and from pleadings it appeared that both parties were not ready to continue their marital tie. In their affidavits, both state that they were residing separately from February, 2007 and hence both were residing away from each other for more than one year before the presentation of the Section 13[B] petition. The Appellate Court also found that the affidavit of wife demonstrated that they were residing separately from one year before filing of the petition. It also noted that Advocate for husband submitted that, wife was residing at house of her brother at Karanji itself and this submission was not “refuted” by appellant i.e. wife. In view of this consideration the appeal came to be dismissed.

2. I have heard Advocate Shri Bhuibar, for appellant Wife and Advocate Shri Anjan De, for respondent husband in this background.

3. On 04.02.2009 following three questions were framed and after hearing the parties, the appeal was closed for orders/ judgment. “(1) Whether in present facts and circumstances, there is compliance with provision of Section 23[1][bb] of the Hindu Marriage Act ?

(2) Whether the petitioner Wife could have challenged the judgment and order in H.M.P.No.24/2008 in Appeal ?

(3) Whether the petitioner-Wife has indulged in perjury?”

Then it was felt that an attempt for re-conciliation should have been made even in High Court, accordingly, in consultation with both the Advocates sought time for the said purpose till 02.03.2009 and ultimately both of them expressed their inability and stated that efforts undertaken for re-conciliation failed. The matter was therefore again heard on 02.03.2009 and on that date Advocate Shri De for respondent invited attention to the provisions of Order 41 Rule 25 of C.P.C. to urge that if this Court finds it necessary, a limited issue or question can be framed and finding upon it can be called from the Trial Court. The appeal was finally closed for judgment on 02.03.2009.

4. Advocate Shri Bhuibar, has contended that the requirement of law in this respect is very clear and the Civil Judge, Senior Division has to record a satisfaction under Section 23[1][bb] so as to avoid such contentions and arguments from being raised. He invites attention to the fact that address of both the parties mentioned in the marriage petition is same and their affidavits also mention very same address. There is nothing on record to show that they were residing away from each other and the petition itself did not demonstrates that parties were staying separately for more than one year. He relies upon two judgments of Hon’ble Apex Court reported at AIR 1998 SC 764– Balwinder Kaur .vrs. Hardeep Singh , Sureshta Devi .vrs. Om Prakash– 1991 (1) Mh.L.J. 324, to urge that the Lower Courts have failed to exercise jurisdiction in accordance with the law. AIR 1987 Punjab 191 Smt. Krishna Khetarpal .vrs. Satish Lal, is being pointed out to show that the present appeal is maintainable. Lastly it is argued that in view of the document filed along with the reply by the present respondent/husband need for counseling couple was apparent and Civil Judge, Senior Division has not held any conciliation proceeding in the matter. The learned counsel therefore, prayed for allowing the Second Appeal.

5. Advocate Shri Anjan De, for respondent husband has placed strong reliance upon the documents filed by the respondent on affidavit along with Civil Application No. 130/2009. The said application is also styled as “submissions”. It is for taking action for perjury and for contempt of Court against the appellant. It is pleaded that the documents accompanying it are obtained under Right to Information Act. The first document is report submitted by the S.D.P.O. Pandharkawada on 20.08.2008 to Assistant Superintendent of Police, at Yavatmal after enquiry into the complaint made by Digamber Ramdas Dhote. He is father of present appellant. The second document is the oral statement recorded by S.D.P.O. The fourth document is statement dated 18.8.2008 of present appellant and in that statement she has that she is married with the present respondent and has two sons from him. She has further stated that she has love affair with police constable Surendra Wasnik, since last one year and she has gone out with him and when ever he used to visit her, he used to present her with Saree or some ornaments out of love. This relationship was not liked by her parents and some others and hence complaint came to be filed against Shri Wasnik, She mentioned that she had applied for divorce before the Court and case would be decided within a month. After grant of divorce from court she was going to reside with Shri Wasnik because of their relations. Her father in law and mother in law had agreed to look after her sons and hence custody of sons would be with them. She has further stated that before moving for divorce she had a talk with Shri Wasnik on mobile phone of her husband and as Shri Wasnik promised that they would reside jointly, she had informed accordingly to her husband who was standing by her side. She further stated that she had tried to contact Surendra Wasnik on mobile in last 2/3 months, but contact could not be established. Document no.5, is statement of her husband [present respondent], which shows that he has corroborated the above position. He has further stated that his wife is deeply in love with Shri Wasnik and they also tried to commit suicide by pouring kerosene and because of this ultimately proceedings for divorce were required to be initiated. Annexure-R2 with this reply is copy of application dated 4.4.2008 filed in the court of Civil Judge, Senior Division, Pandharkawada where both the parties to this appeal pointed out that as the applicant no.2 wife therein wanted to marry Surendra Wasnik, waiting period of 6 months should be relaxed. Annexure- R3 is the affidavit dated 6.10.2008 filed by the present appellant before the said Court in which she has mentioned that they have not been residing together as such from February 2007 and as there was no possibility of reconciliation on 4.4.2008, proceedings for divorce by mutual consent came to be filed. She has further stated that she is not going to claim any maintenance from her husband and also waived her right to custody of children. She has further stated that she was not carrying from her husband and as re-conciliation was not possible, though relatives tried to mediate and resolve, she was voluntarily severing the relationship. She has further stated that she is firm on her decision taken 6 months earlier.

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6. In view of this document Advocate Shri De, contends that even after filing of the proceedings for grant of divorce on 4.4.2008 the desire and decision of present appellant to separate from the respondent has come on record and he points out that all these statements are recorded also 4 months thereafter. He states that therefore plea of any mis representation or coercion or pressure is clearly by way of after thought and false affidavit has been filed before this Court. According to him it is nothing but perjury and as it interferes with the administration of justice it also constitutes contempt of Court. He has invited attention to statement of Surendra Wasnik recorded on 19.8.2008 by the S.D.P.O in which Surendra Wasnik has stated that he was not knowing the present appellant and he had even never talked with her. He has further stated that because there was some quarrel or misunderstanding between the said lady and her husband, she filed proceedings in the court of law and as she needed some shelter, she was trying to get into his house. He further stated that he is already married and his wife was working in health department as staff nurse and his son aged about 7 years is taking education in school at Yavatmal. He further mentions that because of service of his wife, his wife and children were residing at Yavatmal only. The S.D.P.O has in brief narrated all these statements and in his report, stated that police constable Surendra Wasnik had conducted himself in a manner not becoming of his status and therefore he deserves tobe punished. It is the contention of Advocate Shri De, that because of change in his statement by Shri Wasnik, as it became clear to appellant that he is not going to marry or reside with her, she might have changed her stand. According to him in present circumstances, there is substantial compliance with provisions of Section 23[1][bb] and entire case law cited above is not relevant. He points out that from orders passed on 9.4.2008 it is apparent that the Presiding Officer has heard both of them and then after perusal of the contents of petition adjourned it to 6.10.2008. He therefeore, states that efforts to conciliate were also made on that date and hence no substantial question of law arise in this Second Appeal and the same deserves to be dismissed.

7. The contention of Advocate Shri De, in Civil Application No.130/2009, is to initiate action against the appellant / wife and to punish her for perjury. The said application is also to be treated as submissions of respondent / husband. The documents prepared by Deputy Divisional Police Officer and report submitted by him to the Superintendent of Police, Yavatmal are relied upon to show that, there was no pressure of any type upon the appellant / wife and her contention that her signature on petition for grant of divorce by mutual consent or that on affidavits were obtained by force, are false. It is also alleged that by making false allegations before this Court, she obtained interim order on 30.01.2009. I find it premature to rely on the said documents at this stage and to return any finding on perjury on this basis. The interim order was passed by this Court on 30.01.2009 after hearing both the sides. The report prepared by police or statements recorded by police are still not put to the appellant, as required by law and hence at this stage it cannot be used against her. Perusal of the statements recorded by police and report prepared on its basis, reveal that the appellant / wife wanted to have relations with police Constable Shri Wasnik and wanted to cohabit with him. The statement also discloses that she had made telephone calls accordingly to the said constable by using mobile instrument of her husband and in presence of her husband. The police constable Shri Wasnik assured to cohabit with her and then only she filed the application for divorce along with her husband. But unless and until all these facts are proved on record, no reliance can be placed upon the same at this stage. The prayer to punish the appellant for perjury is therefore premature. Recourse to Order 41 Rule 25, only for this purpose in present matter is not warranted.

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8. The provisions of Section 13[B] of Hindu Marriage Act require the parties to live separately for a period of one year before petition for grant of divorce is presented. Perusal of application as moved by the parties jointly on 4.4.2008 reveals that it does not disclose this fact & does not contain any statement in this respect. On 4.4.2008 the petition was presented and the in charge Court directed it to be placed before the regular Presiding Officer. Both the parties were present before the regular court on 09.04.2008. The said court i.e. Trial Court has recorded that it perused the contents of the petition and heard both of them in person. Thereafter it adjourned the matter to 06.10.2008 for further orders. The order therefore clearly shows that the fact whether parties were residing together or were residing separately has not been specifically gone into by the said Court on 09.04.2008. The petition as filed prima facie shows that both of them were residing at same place. Advocate Shri De, has contended that the appellant was residing with her brother in same village. However, the position is to be verified by the Trial Court on very first date, and this exercise ought to have been undertaken on 09.04.2008 itself. Advocate Shri De, has pointed out that on 4.4.2008 the parties had moved application for waiving the requirement of waiting for 6 months and in it, it has been mentioned that wife had to remarry immediately with Shri Wasnik, Police Constable. This application is supported by separate affidavits of both. Dates given by the Trial Court show that no such exemption was granted by it. However, orders if any, passed upon it have not been brought on record. On 6.10.2008 again wife has filed affidavit and in the said affidavit, she has mentioned that there was difference of opinion between the two since beginning and they were residing separately from February 2007. She has stated that she was reiterating her decision to obtain divorce by mutual consent. It is to be noted that the grievance of the appellant is that her signatures were obtained against her wish by her husband.

9. The judgment of Hon’ble Apex Court in the case of Sureshta Devi .vrs. Om Prakash (1991 Mh.L.J. 324), the Hon’ble Apex Court has held that, it is open to the parties to even unilaterally withdraw through consent at any time. In paragraph No. 9 the Hon’ble Apex Court has noted that parties have to make joint motion not earlier than 6 months after the date of presentation of petition and such much enables the Trial Court to find out 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 Trial Court can make such enquiry as it thinks fit, including examining parties for that purpose and if it is satisfied that consent of the parties were not obtained by force, fraud or undue influence and that they mutually agreed for dissolution of marriage, the Trial Court must pass a decree of divorce. In Balwinder Kaur .vrs. Hardeep Singh (supra) in paragraph No.15, the Hon’ble Apex Court has held that Section 23 of Hindu Marriage Act mandates that Court before granting decree of divorce has to satisfy itself that grounds for claiming relief exists and petitioner is not taking advantage of his own wrong or disability. Court has to make an effort to bring about re-conciliation between the parties. I find that the provisions of Section 23[1][bb] require the Court to satisfy itself that consent for divorce under section 13[B] has not been obtained by force, fraud or undue influence. This application of mind has to be on very first date when the court adjourns the matter for conciliation or for statutory period and must reveal itself in the court order then passed. The said order must also disclose that the court had satisfied itself that the matter fulfilled all requirements of law relevant at that stage. The earlier order & impugned judgment delivered by the Trial Court or by the Lower Appellate Court does not show that any such satisfaction was reached or recorded by the Trial Court. The final order passed on 16.02.2008 by the Civil Judge, Senior Division, reveals that even the date from which the parties were staying separately has not been mentioned any where in it, and the compliance with Section 23[1][bb] is also not recorded. It only mentions in paragraph no.4 that dispute between the parties could not be settled by their relatives. In paragraph No.5 it has been mentioned that the petition was jointly presented on 04.04.2008 and statutory period of 6 months was given to parties to find out genesis of settlement between them and thee was no fruitful settlement. Thus there was no endeavor by the Court below to find out whether any conciliation was possible or not. The said judgment of trial Court was then questioned by wife by filing Appeal under Section 28 of the Hindu Marriage Act in the Court of District Judge at Pandharkawada. In appeal memo in paragraph no.13 it has been specifically averred that there was no separation and the averment in the application before the trial Court were false. It is also pleaded that false affidavit was prepared and wife was compelled by the husband to put her signature on it. These contentions are not considered by the Lower Appellate Court. It appears that the Advocate who was jointly representing the husband and wife before the Trial Court appeared on behalf of respondent to oppose the appeal of wife. The lower Appellate Court should not have permitted such appearance, particularly in view of the ground of compulsion or force by the wife. Appellate Court has found that in affidavit dated 6.10.2008 both the parties mentioned that they were residing separately from February 2007 and hence condition precedent required under section 13[B] was satisfied. The contentions of appellant / wife that her signature was obtained by pressurizing her or then the averment in their affidavit were false, are ignored and the fact that statutory requirement of recording satisfaction in this respect cast upon the Trial Court by section 23 is not fulfilled, is also ignored. Thus the appeal came to be dismissed only by accepting the disputed affidavit as sufficient compliance.

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10. Both the judgments are therefore delivered mechanically without any application of mind to the provisions of Law in the matter. The obligation cast upon court by legislature while dissolving marriage by consent is overlooked and its object has been defeated in this case. The institution of marriage is sacred and marriage tie is not to be easily broken. The requirement to verify the voluntary nature of consent, provision of a period of separation, duty to attempt to conciliate and waiting period of 6 months in court all show the seriousness with which the parties as also the courts of law have to evaluate the facts. Here, both the courts have acted mechanically thereby defeating the statutory protection extended to week spouse by law. The judgments are therefore unsustainable.

11. Advocate Shri De, however has also raised contention that as divorce has been obtained by mutual consent, the decree is consent decree and hence appeal is not maintainable. In Smt. Krishna Khetarpal .vrs. Satish Lal (supra), the Hon’ble Division Bench of that High Court has considered the identical challenge in paragraph nos. 3 to 6 and concluded that appeal against such decree is maintainable. It has been held that Section 28[1] of Hindu Marriage Act provides a right of appeal and all original decrees made by the Trial Court under the said Act are appealable. The decree of divorce by mutual consent is one such decree & hence, also appealable. It has been observed that appeal under section 96 of C.P.C. is on different footing and Section 96[3] prescribing a bar of appeal against consent decree has no application. In paragraph no.5, it is observed that a decree for divorce by mutual consent is not based merely on mutuality of the consenting parties, but the courts involvement in the decision making is inextricably a part of such decree. Possibility of an error, legal or factual, in such decision cannot be ruled out, and therefore, appeal under section 28 has been provided for. Another Division Bench of that High Court in the case of Charanjit Singh Mann .vrs. Neelam Maan (AIR 2006 P & H 201), has in paragraph no.25, cited this judgment with approval. AIR 2007 Jharkhand 34 –Smt. Hina Singh .vrs. Satya Kumar Singh, is again the judgment of Division Bench of Hon’ble Jharkhand High Court wherein provisions of Order 23 Rule 3 of C.P.C. are considered and ultimately in paragraph no.3 it has been held that appeal against decree of divorce by mutual consent is maintainable. In view of these judgments which correctly & clearly clinch the issue, I find that appeal against such consent decree is maintainable.

12. Legislature has cast obligations upon Court entertaining the proceedings under section 13[B] to record a finding that consent for divorce has not been obtained by force, fraud or undue influence. Thus legislature has visualised that there may be a case in which consent for divorce may be obtained and decided to provide a safeguard against abuse of this provision. Hence obligation has been cast upon the court to verify the same, and to record a satisfaction that the consent given by the parties is free and voluntary. Thus having visualized abuse of such provision for grant of divorce by mutual consent by use of force, fraud etc., it cannot be accepted that legislature did not provide for a remedy to the spouse aggrieved in such matters. To hold that remedy of appeal is not available to such aggrieved spouse, will be rendering nugatory the exercise of obligation cast upon the trial court by the Legislature. I therefore find that the arguments of Advocate Shri De about tenability of appeal against such consent divorce decree are liable to be rejected.

13. In view of this consideration, it has to be held that the appeal as filed by the appellant / wife before the Lower Appellate Court and before this Court is legally maintainable and question no.2 needs to be answered accordingly in affirmative in her favour. Question no.3 about indulgence in perjury by the appellant wife cannot be answered at this stage in absence of sufficient material, as it is found to be premature. No remand or calling of report from trial court in that respect is necessary as even otherwise the trial court has to look again into the voluntary nature of wife’s consent. Question no.1 is answered in favour of the wife by holding that there is no compliance with provisions of Section 23[1][bb] of the Hindu Marriage Act.

14. In the circumstances, the judgment and decree dated 06.10.2008 delivered by the Civil Judge, Senior Division, Pandharkawada (Kelapur) in H.M.P. No. 24/2008 is hereby quashed and set aside. Similarly, the judgment and decree dated 06.12.2008 delivered by the District Judge-I, Pandharkawada in Regular Civil Appeal No. 68/2008 is also quashed and set aside. H.M.P. No.24/2008 19

is restored back to the file of Civil Judge, Senior Division, Pandharkawada for its further trial in accordance with law. Second Appeal is accordingly allowed. However, in the circumstances of the case there shall be no order as to cost.

JUDGE

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