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When decree for divorce by mutual consent is liable to be set aside?

IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 198 of 2008

(Against the Order and Decree dated 16.5.2007 passed by the learned Principal
Judge, Family Court, Ranchi, in M.T.S. No. 205 of 2006)

Seema Pathak ….. … Appellant
Versus
Chotelal Pandey ….. … Respondent

For the Appellant : M/s Manoj Tandon, Rashmi Kumari & Shiv Shankar Kumar & Micky Kumari, Advs.
For the Respondent : Mr. Sanjay Kumar Pandey, Advocate

PRESENT : HON’BLE MR. JUSTICE H. C. MISHRA,HON’BLE MR. JUSTICE Dr. S.N. PATHAK

By Court:- Heard learned counsel for the appellant and learned counsel for the respondent.

2. The appellant is aggrieved by the Order dated 16.5.2007 passed by the learned Principal Judge, Family Court, Ranchi, in M.T.S. No. 205 of 2006, whereby the joint petition filed by the applicants under Section 13-B of the Hindu Marriage Act, has been allowed and the marriage between the parties has been dissolved by the decree of divorce by mutual consent.

3. Though the appeal has been filed by the appellant wife challenging the impugned order and decree also on the ground of fraud, stating that her signatures were obtained on blank papers and also stating that the appellant had lived together with the respondent for almost three months preceding the date of presentation of the petition on 10.11.2006, but these are the questions of facts, which had to be proved on evidence by the appellant while challenging the impugned order, by filing an application in the Court below itself, for setting aside the decree on those grounds. However, the appellant has also filed this appeal alleging that the mandatory requirements of law have not been complied with by the learned Court below while allowing the petition filed under Section 13-B of the Hindu Marriage Act. On this ground alone, we are adjudicating this appeal.

4. Learned counsel for the appellant has pointed out from the Lower Court Records that the petition under Section 13-B of the Hindu Marriage Act was filed on 10.11.2006 and by order dated 30.11.2006, the case was fixed to be listed after six months and the date was fixed as 14.7.2007. It is pointed out from the Lower Court Records that without recalling the said order, somehow or other, the matter was taken up on 14.5.2007 itself and 16.5.2007, the application filed under Section 13-B of the Act was allowed without complying with the mandatory requirements of the Hindu Marriage Act, the Family Courts Act, as also the Code of Civil Procedure.

5. Learned counsel has submitted that Section 9 of the Family Courts Act and Order XXXII -A Rule 3 of the Code of Civil Procedure caste a duty upon the Family Court to make efforts for settlement in every suit or proceeding, in the first instance, and to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding. Learned counsel submitted that these provisions were never complied with by the Family Court while allowing the petition filed under Section 13-B of the Act.

6. Learned counsel further submitted that in a suit for dissolution of marriage by a decree of divorce under Section 13-B of the Hindu Marriage Act, Section 13-B(2) prescribes that before passing the final order under Section 13-B of the Act, the Court has to satisfy itself after hearing the parties and after making such enquiry as it may deem fit, that the marriage had been solemnized and the averments in the petition are true. Learned counsel for the appellant has also drawn our attention towards Section 23(1)(bb) of the Hindu Marriage Act, which requires the Court to be satisfied in the case of divorce being sought on the ground of mutual consent, that such consent had not been obtained by force, fraud or undue influence. Learned counsel submitted that even these provisions were never complied with by the Family Court while allowing the petition filed under Section 13-B of the Act.

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7. Learned counsel has placed reliance upon a decision of the Division Bench of this Court in Smt. Hina Singh Vs. Satya Kumar Singh, reported in 2007 (1) JLJR 615, wherein in a similar circumstance, the decree passed under Section 13-B of the Hindu Marriage Act was set aside by this Court. Learned counsel has accordingly, submitted that the impugned order and decree passed by the Court below cannot be sustained in the eyes of the law.

8. Learned counsel for the respondent, on the other hand, has opposed the prayer and has submitted that the joint petition under Section 13-B of the Hindu Marriage Act was filed on 10.11.2006 and it has been allowed by order dated 15.5.2007, as the said petition was not withdrawn in the meantime and the parties were living separately, and accordingly, on being satisfied that it was presented by the parties, the Court below has allowed the petition and dissolved the marriage by the decree of divorce by mutual consent. It is also submitted by learned counsel for the respondent that there is no illegality in the impugned order.

9. Section 9 of the Family Courts Act reads as follows:-

“9. Duty of Family Court to make efforts for settlement.- (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the HIgh Court, follow such procedure as it may deem it. (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.”

10. Order XXXII-A Rule 3 of the Code of Civil Procedure Code, reads as follows:-

” 3. Duty of Court to make efforts for settlement– (1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit. (2) If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

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(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.”

11. Section 13B of the Hindu Marriage Act reads as follows:-

“13B. 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 marraige was solemnised 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 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 solemnised 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 decree.”

12. Section 23(1)(bb) of the Hindu Marriage Act reads as follows:-

“Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(a) xxx xxx xxxx.
(b) xxx xxx xxxx.
(bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and
(c) xxx xxx xxx.”

13. A bare reading of these provisions clearly show that all these are the mandatory provisions, which had to be complied with before passing the final decree of divorce by mutual consent under Section 13-B of the Act by the Court below. In Smt. Hina Singh’s case (supra), this Court has laid down the law as follows:-

“16. It is, therefore, clear that Section 23 of the Hindu Marriage Act, 1955, Section 9 of the Family Courts Act, 1984, Section 89 and Order XXXIIA of the Code of Civil Proceduce make it obligatory for the Court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon. The matrimonial disputes are distinct from other types of disputes on account of presence of certain factors which are not found in other disputes. These factors are motivation, sentiments, social compulsion, personal liabilities and responsibilities of the parties, the views of the two parties regarding life in general and to the institution of marriage in particular, the security of the future life; so on and so forth. Heavy responsibility, therefore, lies on the Court concerned to go for Court annexed mediation. The main role of the Court is to discover a solution instead of breaking the family relations. It is the mandate of law as also the social obligation of the Judge to make an earnest attempt for reconciliation. As noticed above, considering the importance of settlement in matrimonial disputes Order XXXIIA was inserted as because for the sensitive area of personal relationship special approach is needed keeping in view the fore front objective of family counseling as a method of achieving the ultimate object of preservation of the family.”

14. We have also gone through the Lower Court Record. The record shows that the petition under Section 13-B of the Act was filed by the parties on 10.11.2006. There was some amendment in the date of marriage and the suit was admitted on 30.11.2006 and it was fixed to be listed after six months on 14.7.2007. There is no order preponing the date, but the suit has been allowed by dissolving the marriage between the parties on 16.5.2007, which is before the expiry of the period of six months from the date of the amendment made in the petition, on which date, the case was admitted. The Lower Court Record also shows that on 10.11.2006, both the applicants had filed affidavits in support of the petition and on the back of the same affidavit on 15.5.2007, their statements were recorded by the Court below stating that they had filed the petition out of their freewill and they want their marriage to be dissolved by divorce and on that basis only, the petition under Section 13-B of the Hindu Marriage Act has been allowed by the Court below. In other words, the record clearly shows that the Court below had not taken any step to satisfy itself after hearing the parties and after making any enquiry, about the solemnization of marriage between the parties and the truthfulness of the averments in the petition, nor the Court below had taken any effort to satisfy itself that the consent of the parties had not been obtained by force, fraud, or undue influence, as required under Section 23(1)(bb) of the Hindu Marriage Act. The Court below had not taken any efforts for assisting or pursuing the parties in arriving at a settlement in respect of their dispute, which is the mandatory requirement, both under Section 9 of the Family Courts Act, as also under Order XXXII-A Rule 3 of the Code of Civil Procedure.

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15. In the present case, we find that the Court below has ignored all these mandatory provisions of law while passing the decree of divorce by mutual consent. In our considered view, the impugned order passed by the learned Principal Judge, Family Court, Ranchi, suffers from inherent illegality and the same cannot be sustained in the eyes of the law.

16. In view of the aforementioned discussions, the impugned Order and Decree dated 16.5.2007 passed by the learned Principal Judge, Family Court, Ranchi, in M.T.S. No. 205 of 2006, are hereby, set aside. The matter is remanded back to the Court below to decide the same afresh in accordance with law.

17. This appeal is accordingly, allowed. Let the Lower Court Record be sent back forthwith.

( H. C. Mishra, J.) (Dr. S.N. Pathak, J.)
Jharkhand High Court,
Ranchi
Dated the 29th November, 2016

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