The Single Bench of the Bombay High Court consisting of Justice Mangesh S. Patil while deciding a matrimonial case held that the respondent-husband cannot be compelled to go ahead and seek a divorce by mutual consent under Section 13B of the Act against his wish when case itself does not come under Section 13B of the Hindu Marriage Act, 1955.
Facts and Procedural History
The parties solemnized the marriage on 24.04.2012. Due to matrimonial dispute, they started living separately since March 2013. Respondent-husband instituted a petition for divorce on the ground of desertion u/s 13(1) (i-b) of the Act. The parties appeared before a marriage counsellor and settled the terms. The respondent then filed an application inter alia contending that in terms of the compromise he has paid Rs. 25,00,000/- to the petitioner-wife but now it is difficult for him to pay the remaining amount from of Rs. 1,10,00,000/- and therefore he may be permitted to withdraw his consent. The petitioner opposed that application by filing a say. It was contended that the terms and conditions were settled before the counsellor and the consent could not be withdrawn. In view of the consent terms the petition ought to have been treated as a petition u/s 13B of the Act. It was also contended that even the request for withdrawal of consent was moved after a lapse of more than a year and, therefore, he should be made to pay the remaining amount of Rs. 86,00,000/-. The learned Judge of the Family Court allowed the application of the respondent and permitted him to withdraw the consent.
Contentions made
Appellant: Since the terms and conditions were settled before the marriage counsellor, there was no question of withdrawal. The terms were duly presented before the Family Court and for all practical purposes the petition thereafter ought to have been proceeded u/s 13B of the Act. In view of the provisions of Rule 31 of the Family Courts (Maharashtra) Rules, 1987 the terms of settlement agreed before the marriage counsellor have sanctity and finality. Reliance was placed on the Division Bench decision of this Court in the case of Prakash Alumal Kalandari vs Jahnavi Prakash Kalandari and Jayshree Ramesh Londhe vs Ramesh Bhikaji Londhe.
Respondent: In terms of the settlement respondent already paid an amount of Rs. 25,00,000/- to the petitioner. Since he was unable to pay the remaining amount, he sought to withdraw the consent. Moreover, the proceeding was never converted to the one u/s 13B of the Act. Even till date it continues to be a petition for divorce on the ground of desertion u/s 13(1) (i-b) of the Act. Reliance was placed on the decision in the case of Prakash Kalandari (supra) and Smt. Sureshta Devi Vs. Om Prakash.
Observations of the Court and Judgment
The Single Bench, agreeing to the contention made by respondent, observed that:
It was observed that in the case of Prakash Kalandari (supra), the factual matrix in that case were completely different. Therefore, the petitioner was not entitled to derive any benefit from the decision. Turning to the provision of Rule 31 of the Family Courts (Maharashtra) Rules, 1987, it was observed that as per this Rule the Court must pronounce the decree based on the terms signed by the parties and countersigned by the counsellor. However, “the obligation on the part of the Court to pronounce a decree or order comes with a rider that it must record a satisfaction that the terms of settlement are unconscionable, legal, and not contrary to the public policy”. It was also observed that:
“If the parties in the matter in hand have agreed to convert the petition for divorce as the one u/s 13B of the Act, mere signing of these terms would not give jurisdiction to the Family Court to pronounce a judgment and grant a decree of divorce by mutual consent. Further rigours u/s 13B would still come into picture including a time of six months for reflection contemplated u/s 13(2) of the Act as has been laid down in the matter of Smt. Sureshta Devi (supra). If the respondent is entitled to withdraw the consent, when the circumstances do not indicate about the petitioner having acted to her detriment as was the case in the case of Prakash Kalandari (supra), Rule 31 (supra) would not come to the rescue of the petitioner.”
So, the impugned order passed by the Family Court allowing the respondent to withdraw his consent was held legal.
Source : https://www.latestlaws.com/case-analysis/hc-expounds-husband-cannot-be-compelled-to-seek-a-divorce-by-mutual-consent-under-section-13-b-of-the-hma-when-the-petition-was-never-converted-as-one-read-judgment-180360