IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

WRIT PETITION NO. 3556 OF 2008.

Mr Rajesh s/o Pratap Sainani Hindu,
Indian Inhabitant of Mumbai, Aged 33 years,
Occu.business, At present residing at 762, Shantivan, Old Lokhandwala Complex, Andheri, Mumbai 400 053. ..Petitioner.

V/s.

Mrs Bhavna W/o Rajesh Sainani Hindu

Inhabitant of Mumbai Aged 31 years,
Occ.Housewife, At present residing at C/o Narain Das Advani, 4/12, Bhagwan Singh Coloni, Tulsi Pipe Road, Mahim Mumbai 400 016. .. Respondent.

Mr Rajendra M. Sorankar, Advocate for the Petitioner.
Mr Shailesh Shah i/b J. J. Saxena, Advocate for the Respondent.

CORAM: V.C.DAGA, J.

DATED: 26.08.2008.

JUDGMENT:

1. Rule, returnable forthwith. Perused the petition. Heard finally by consent of parties.

2. This petition, under Article 227 of the Constitution of India, challenges the order passed by the 7th Family Court, Mumbai in Petition No. A-1301 of 2006 refusing to permit the Petitioner to withdraw his consent, which was given at the time of presenting petition for divorce by mutual consent, under Section 13-B of the Hindu Marriage Act, 1955 (“the Act” for short).

THE FACTUAL MATRIX:

3. The petitioner-husband had filed petition under Section 9 of the Act, for decree of restitution of conjugal rights. During pendency of this petition, the respondent-wife made complaint under Section 498-A of the Indian Penal Code (I.P.C.) with the Oshiwara Police Station, Mumbai, against the petitioner. It was under investigation.

4. The troubled marriage had also given rise to reciprocating demand for return of ornaments given in the marriage.

5. Both parties, having realized that marriage is irretrievably broken and there was no possibility to save their marriage, filed application under Section 13B of the Act for decree of divorce by mutual consent, duly signed by them, on 28.10.2006. ( 3 )

6. The settlement of matrimonial dispute by mutual consent was agreed by both spouses resulting, inter alia, wife withdrawing her criminal complaint filed under Section 498-A of the I.P.C. and waiving all claims towards future maintenance for herself and her minor son and agreed to have custody of minor son Dhruva holding herself solely responsible for welfare of the minor son Dhruva. The petitioner-husband agreed not to claim the custody of the minor son Dhruva at any time in future but retained his right to have access.

7. Both parties exchanged jewelleries, gift articles received by them in marriage and declared that they shall have no claim against each other in that behalf. Parties to the dispute acted upon the terms of compromise. Both parties agreed, confirmed and clarified that subject to the compliance of the terms and conditions, the marriage shall stand dissolve by decree of divorce by mutual consent. Both parties declared absence of collusion between them and sought decree of divorce by mutual consent by moving application under Section 13-B of the Act to the Family Court, Mumbai.

8. The petitioner-husband on 23.5.2006, i.e. after lapse of seven months from the date of presentation of the petition, filed an application for cancellation/withdrawal of his consent for mutual divorce contending that he had agreed for consent terms and divorce by mutual consent under pressure, undue influence, and fear about welfare his son. He filed affidavit in support of his application on 16.11.2007 i.e. after lapse of six months from the date of application seeking to withdraw consent for mutual divorce.

9. The above application was strongly opposed by the respondent-wife on various factual and legal grounds pressing into service the doctrine of estoppel.

10. The pleadings of the parties filed before the learned Family Court give a clear indication that both parties agreed for decree of divorce by mutual consent and to compromise all their disputes and made a joint statement in the petition expressing their willingness for a divorce by mutual consent.

11. The learned 7th Family Court heard both parties and vide its reasoned order dated 17.1.2008 dismissed the application of the Petitioner seeking to withdraw his consent holding that it will cause a serious prejudice and/or injustice to the respondent-wife.

12. Being aggrieved by the aforesaid order dated 17.1.2008 refusing to permit the petitioner to withdraw his consent and thereby declining to dismiss the petition filed under Section 13-B (2) of the Act, he has invoked writ jurisdiction of this Court under Article 227 of the Constitution of India.

SUBMISSIONS:

13. The learned counsel for the Petitioner, repeatedly, reiterated that the Petitioner was made to ( 6 ) sign consent terms under coercion and undue influence without disclosing material facts and particulars including the effects thereof.

14. The learned counsel for the petitioner urged that during the pendency of the petition for divorce by mutual consent, in law, it is open for the respondent to withdraw his consent at any time so long as the decree of divorce has not been passed. He submits that the consent must exist on the date when the petition for decree of divorce by mutual consent was filed and it must continue to exist till the orders are passed by the competent Court, dissolving marriage by consent. Reliance is placed on two Judgments of the Division Bench of this Court, one in Family Court Appeal No. 39 of 2008 decided on 29th April, 2008 between Mr Sanjay Pahariya v. Ms Smruti Pahariya (unreported), (unreported of which para 19 was heavily relied upon, which reads as under:

19. “We are not impressed by this submission. We have already quoted extensively from Sureshta Devi’s case (supra). A reading of this judgment leaves no room for doubt that there should be mutual consent when parties move the court under section 13-B(2). No decree under section 13-B(2) can be passed on initial consent and the court must be satisfied about existence of mutual consent at the time it passes the decree. It is true that ordinarily, a motion can be made by one party to a proceeding. But, section 13-B(2) begins with words ” on the motion of both the parties”. Therefore, motion contemplated therein has to be made by both parties. In fact, in Sureshta Devi’s case (supra), the Supreme Court has laid stress on these words and made the observations quoted above. It is not open for us to differently interpret section 13-B of the said Act.”(Emphasis supplied)

15. The another judgment, relied upon by the petitioner arose out of Civil Reference No. 2 of 2007 decided on June,2008 between Principal Judge, Family Court, Nyaya Mandir Premises, Civil Lines, Nagpur vs. Nil taking view similar to the view taken in Sanjay Pahariya’s case (cited supra).

16. Learned counsel for the petitioner, thus, prayed for setting aside the impugned order and dismissal of the petition or divorce by mutual consent filed under Section 13B of the Act.

17. The learned counsel for the respondent-wife supported the impugned order and pressed into service doctrine of estoppel to contend that the petitioner husband is estopped from withdrawing his consent since the respondent-wife acted to her prejudice accepting the representation made by the petitioner-husband that he is ready for divorce by mutual consent if his terms are accepted. That the move on the part of the petitioner is seriously criticised and branded it to be mala fide and dishonest move and prayer for dismissal of the petition in limini with heavy costs is made.

STATUTORY PROVISION:

18. At this stage, it is necessary to reproduce the relevant statutory provisions of Section 13B (1) and (2) of the Hindu Marriage Act, which read as under: . Section 13B :

(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 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 made by both the parties made not earlier than six months after the date of 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 mean time, the Court shall, on being satisfied, after hearing the parties and making such enquiry 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 a marriage to be dissolved with effect from the date of decree.

RELEVANT JUDGMENTS:-

19. Before embarking upon the submissions of rival parties, let me turn to the relevant reported judgments so as to examine settled legal position:- (1) In the case of Nachhattar Singh v Harcharan Kaur, A.I.R. 1996 P and H, 201, it was held that : 201

“The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than 18 months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such Inquiries as it thinks fit, that the petition was in fact presented by both the parties to the marriage, that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all other conditions mentioned in sub section (1) of Section 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case, without making any inquiry under sub Section (2) the Trial Court has to dismiss the petition as withdrawn which could not be done merely on the asking of one party.”

(Emphasis supplied)

(2) A Similar view was taken by the Delhi High Court in Smt Chander Kanta vs. Hanskumar and Anr (I) 1998 D.N.C. 509; 509 wherein it was held that:

19. “A petition presented under Section 13B (1) of the Act cannot be withdrawn by one party unilaterally. Of course, if the Court is satisfied that a consent was not a free consent and it was the result of force, fraud or undue influence then it is a different matter because in such a case the Court is empowered specifically to refuse to grant the decree. If one party is allowed to withdraw the consent, even when other grounds, namely that the parties continued to live separately and have not been able to live together, still subsists and reconciliation is not possible then it will frustrate the very purpose of the enactment. Under Section 23(1)(bb), the Court is empowered to grant the decree even in an undefended case if it is satisfied that the averment in the petition are true and the consent for mutual divorce has not been obtained by fraud, force or undue influence. If unilateral withdrawal of consent is permitted the Court will not be able to pass a decree in an undefended case”.

Thus, it is clear that it is settled law that unless it is shown by one party that his/her consent was as a result of force, fraud or undue influence, consent given for grant of divorce by mutual consent in the petition under Section 13-B (1) of the Act cannot be unilaterally withdrawn by the said party, which position of law has also been followed in volume 41 (1990 Delhi Law Times 266) in the case of Rajrani vs. Roop Kumar.

(Emphasis supplied)

20. In A.I.R. 1997 SC 1266 in Ashok Hura v. Rupa Bipin Zaver, the Hon’ble Supreme Court, while dealing with similar question of withdrawal of consent unilaterally by one party concluded that the marriage between the parties has been irretrievably broken and that there was no chance of their coming together or living together, and went on to observe, as under:- “We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically and there is no chance at all of the same being revived and continuation of such a relationship is only for namesake and that no love is lost between theparties, who have been fighting like “Kilkenny cats” and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13-B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards.

Irretrievable breakdown of marriage is now considered, in the laws of number of countries, good ground of dissolving the marriage by granting a decree of divorce. Proof of such breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legalities acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage. The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and not an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which may regulate their relationship in the changed circumstances…”

(Emphasis supplied)

21. In Rachna Jain vs. vs Niraj Jain II (2006) DMC 410 the Delhi High Court had an opportunity to deal with the case involving more or less similar facts wherein the Court refused to permit withdrawal of the consent holding such move on the part of the respondent-husband to be mala fide, baseless and unjust since the terms of settlement were acted upon by both parties.

22. In Ashok Hura’s case (supra) the Hon’ble Supreme Court dealt with its earlier judgment in Sureshta Devi’s case (supra) and observed as under: “It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act, However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact situation herein. The decision in Sureshta Devi’s case AIR 1992 SC 1904, (supra) may require reconsideration in an appropriate case. We leave it there.”

23. The impugned order can be justified on the solitary principle of law laid down by the Apex Court in Ashok Hura’s case (cited supra).

24. Now, turning to the another facet of the submission based on the touchstone of the doctrine of estoppel, it is necessary to examine the reasons recorded by the Family Court in support of its order dated 17.1.2008. The relevant extracts of which are reproduced herein below.

20. “It is important to note that besides bare words of the petitioner, he has not made out any ground of force or coercion used by the respondent on him. Much emphasis is given on the point that the respondent has filed criminal complaint against the petitioner and by taking undue advantage of filing the said complaint, she has pressurised the petitioner. Second, she has used her child against him for obtaining his consent.

21. If we go through the consent terms it clearly reveals that the respondent is withdrawing her right of alimony, secondly, she has agreed to give access of the child, thirdly, she has agreed to withdraw the complaint filed against the petitioner and that the only compliance was remained that too, of passing decree of dissolution of marriage.

22. If we go through the contents of the application exh.17, besides the words that the respondent had used force, influence for signing the consent terms, there is nothing on record to show that the respondent has gained any advantage from the petitioner by compelling him to sign the consent terms. Apart from that, if at all, the respondent would have pressurized the petitioner for signing the consent terms, he could have appeared before the Court even before six months or approach police authorities but he remained silent for about seven months. He has not appeared before the Court even immediately after completion of six months. It clearly reveals that when the respondent has presented the copy of application for withdrawal of her complaint submitted by her to the police, on the very day, when the matter was for appearance, he remained absent on that date and appeared on the next date when the matter was kept after one month. The conduct of the part of the petitioner is such that he has obtained disadvantage by way of agreement by which the respondent has withdrawn the complaint, she has started giving access of the child to the petitioner. In these circumstances, I am of the opinion that the petitioner has failed to establish his consent for converting the petition into the petition for divorce by mutual consent, has been obtained by respondent by playing fraud or coercion on him, as alleged in application Exh.17.

23. Moreover, as I have submitted earlier, the parties have acted upon the consent terms and therefore, it is not desirable at this stage when only the order of dissolution of marriage is remained to be passed. At such stage, if the petitioner is allowed to withdraw his consent, it will cause prejudice or injustice to the respondent. Therefore, the application, deserves to be rejected.” (Emphasis supplied)

25. The finding recorded by the Family Court is that the Respondent-wife acted upon the representation made by the respondent-husband to her prejudice and the petitioner-husband has availed all benefits and enjoyed fruits of the terms of settlement and compromise.

Let me examine as to whether or not the findings are correct.

26. The dissection of the impugned order and material available depict picture, as under:- (i) The respondent-wife, under the garb of said compromise, was made to withdraw her criminal complaint filed under Section 498-A of the I.P.C.

(ii) The respondent-wife was made to return the ornaments which were given to her in marriage by husband’s family.

(iii) The respondent-wife was made to waive her right of present and future maintenance including that of minor son.

(iv) The respondent-wife was saddled with the liability of son’s future education and welfare. In other words, petitioner got himself relieved of the obligations of father towards his minor son; and

(v) The respondent-wife was made to agree to a limited custody of minor son and access to the petitioner-husband for which wife was not agreeable.

27. It is, thus, clear that factually, the respondent-wife has acted upon the terms of compromise to her prejudice accepting the representation made by her husband-petitioner that he was ready for divorce by mutual consent.

28. Now, let me examine the legal effect of representation made by the husband and accepting terms thereof by the wife to her prejudice based on decided cases.

29. The Apex Court in the case of B.L. Sreedhar vs K.M. Munireddy A.I.R. 2003 S C 578 held as under: “The essential factors giving rise to estoppel are, I think –

(a) A representation or conduct amounting to representation intended to induce a course of conduct on the part of the person to whom the representation was made.

(b) An act or omission resulting from representation whether actual or by conduct, by the person to whom the representation was made.

(c) Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted.”

30. In the case of Maddanappa (deceased) after him by his legal representatives vs. vs Chandramma and Anr A.I.R. 1965 S C 1812 the Supreme Court relying upon the judgment of Privy Council in the case of Saratchunder Dey vs. Gopal Chunder Laha 19 Ind App 203 (PC) explained the ingredients of the doctrine of estoppel and went on to hold that a person who sets up an estoppel against the other must show that his position was altered by reason of the representation or conduct of the latter and unless he does that, even the general principle of estoppel cannot be invoked by him.

31. The general principle of estoppel is stated thus by the Lord Chancellor in Cairncross vs. vs Lorimer (1860) 3 H.L.C. 829:

“The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations that if a man either by words or conduct has intimated that he consents to an act which is to be done and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he has so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct…I am of the opinion that generally speaking, if a party having an interest to prevent an act to be done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licence.”

32. Having examined the aforesaid legal position, it is clear that the estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice.

33. With the above understanding of law, if one turns to the facts of the case in hand, at the cost of repetition, I must observe that the Petitioner, by making representation that he was agreeable for divorce by mutual consent provided – respondent-wife withdraws her criminal complaint, returns his ornaments given to her in the marriage and takes care and custody of the minor child with limited access to him. The said representation made by the husband was accepted and acted upon by the respondent- wife to her prejudice. She withdrew criminal complaint filed against the husband and his family members. She returned ornaments received by her in the marriage. She agreed to have a custody of the minor son and on the top of it waived present and future right to claim maintenance for herself as well as for minor son. Thus, it is clear like a day light that the respondent- wife acted to her prejudice by accepting terms of compromise favourable to the petitioner-husband. The husband is, thus, estopped from withdrawing his consent.

34. The Family Court cannot be helpless spectator and duplicity of the petitioner-husband to induce the hapless wife, the respondent to waive maintenance claim for not only herself and her son, also compelled her to withdraw the criminal complaint in the hope of starting her life afresh. The husband by his conduct has caused the wife huge disadvantage. No spouse can unilaterally, wilfully be allowed to withdraw consent even on the grounds; such as fraud, undue force, representation unless grounds are proved satisfactorily. In the present case, if the withdrawal of consent by the petitioner-husband is upheld, it will cause anamoulous situation and serious prejudice to the respondent-wife, who is law abiding person. She will be left high and dry without recourse to any remedy and saddled with dead marriage. The respondent-husband has resorted to fraud and misrepresentation which cannot be permitted by the Courts of Law and equity.

35. The Family Court has rightly taken into account the wrong sought to be done by the husband and his attempt to cheat his wife depriving her an opportunity to work out and regulate the life of herself and her son in a fresh air. A pedantic interpretation of law might result in a situation resulting in gross miscarriage of justice in denying a woman with her abandoned son an opportunity to start their life afresh as stated.

36. Having said so, I am also prevented by the parameters of interference by the High Court in the petition filed under Article 227 of the Constitution of India to interfere with the impugned order in view of the Law holding field in this behalf enumerated herein below.

37. The Apex Court in the case of T.G. Telang vs. R.S. Bhinde A.I.R. 1977 S C 1222 the Apex Court in para 3 held that:

” As would be apparent from the above narrated, the instant case does not involve any substantial question of law of general or public importance. Although counsel for the appellants has strenuously assailed the correctness of the finding of the Revenue Tribunal and of the High Court, we are unable to accede to his contention. We have not, despite careful consideration of the judgments and objections submitted to us, been able to discern any legal infirmity or error either in the decision of the Revenue Tribunal or of the High Court. It is well settled rule of practice of this Court not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the orders passed results in manifesting justice, that the Court can justifiably interfere under Article 227 of the Constitution.”

38. The Apex Court in the case of Waryam Singh v. Amarnath A.I.R. 1954 S C 215 considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd v. Sukumar Mukherjee A.I.R. 1951 Cal 193 (SB) where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.

39. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta (1975) 1 SCC 858 the Apex Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, “as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceeding.”

40. In Nagendra Nath Bora v. Commr. of Hills Division and Appeals A.I.R. 1958 S C 398 the Supreme Court observed as under: “It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the powers under Article 226 the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.”

41. In the above view of the matter, it is evident that withdrawal of the consent by the petitioner-husband is tainted with mala fide, baseless and unjust consideration. The judgments of the Division Benches of this Court referred in paras 14 and 15 supra are not applicable to the facts of this case. The view taken by the learned Family Court is a reasonable and possible view. No case is made out to interfere with the order under challenge.

42. In the result, Rule is discharged. The petition is dismissed with costs quantified in the sum of Rs. 25,000/- to be paid by the petitioner-husband to the respondent-wife.

(V.C.DAGA, J.)