In a notable legal development, a Delhi Court recently issued a mutual divorce decree pursuant to Section 13B of the Hindu Marriage Act, even though the wife had steadfastly contested her husband’s divorce petition for a protracted seven-year period. In this distinctive case, notwithstanding the absence of a formally filed mutual consent divorce petition by the parties, the Court, cognizant of the pronounced matrimonial discord characterized by mutual cruelty, exercised its discretion to grant the divorce.
Justice Harish Kumar, the Principal Judge of the Family Court at the Patiala House Court in New Delhi, articulated in a comprehensive 89-page judgment that, in light of the provisions of Section 10 of the Family Court Act, which constitutes specialized legislation, the Court possesses the authority to dispense with the formal requisites specified under Section 13B of the Hindu Marriage Act when addressing cases in which the parties have resided apart for over a year, are incapable of reconciling, unequivocally express their unwillingness to cohabit, and jointly seek the dissolution of their matrimonial bond.
The Petitioner was represented by Advocate Varun Sharma, while Advocates Prashant Mendiratta and Aditi Chaudhary appeared on behalf of the Respondent.
Background: The couple, both employed as bank officials, entered into a matrimonial alliance in 2011, solemnized through Hindu rites and ceremonies. Their union culminated in the birth of a daughter in 2014. However, the emergence of irreconcilable differences and discordant circumstances led to a protracted marital dispute. Consequently, in 2016, the husband initiated divorce proceedings under Section 13(1)(i-a) of the Hindu Marriage Act before the Family Court in Bandra, Mumbai. The wife contested the divorce petition and concurrently invoked the provisions of the Protection of Women from Domestic Violence Act, 2005, by filing a miscellaneous application encompassing various sections. This legal battle saw the submission of numerous miscellaneous applications by both parties. Subsequently, the Supreme Court transferred the case to the Family Court at the Patiala House Court in New Delhi.
As the Court diligently deliberated upon the matter, it was discerned that, despite the couple’s consistent resolve to sever their matrimonial ties from the inception of the litigation, they remained unable to achieve concurrence regarding divorce by mutual consent, predominantly due to disputes surrounding other ancillary matters.
The judgment underscored that the wife, while initially expressing a desire for “mukti” (freedom or emancipation) from the relationship, and an aspiration to lead a peaceful life detached from her husband, ultimately came to recognize that she was opposing her husband’s divorce plea, having not sought divorce herself. Subsequently, she sought to rectify this incongruity by filing an application under Order VI Rule 17 of the Civil Procedure Code, seeking to amend her response to incorporate a counter-plea for divorce on the grounds of cruelty.
Nonetheless, the Court issued a mutual divorce decree under Section 13B of the Hindu Marriage Act, while concurrently furnishing comprehensive observations and elucidating the rationale underlying the grant of a ‘mutual divorce’ in a contested case.
The presiding Judge emphasized that all the requisite elements specified under Section 13-B were present, with the exception of formal procedural compliance. The Court clarified that the procedural formality mandated by Section 13-B of the HMA entails the joint submission of a divorce petition by both parties, collectively seeking a decree of divorce. However, in the present case, the parties had unequivocally expressed their willingness to terminate their marital relationship over the course of the preceding seven years, albeit not in strict conformity with the specific formalities delineated under Section 13B of the HMA. This incongruity had resulted in needless protraction and legal wrangling, engendered by the distinct positions adopted by the parties.
The Court further referring to the above-para asked, “If all the ingredients as required under Section 13B of the HMA are otherwise available in the matter, wouldn’t it be in the interest of the parties in particular and of the society in general to extend the relief of Section 13B of the HMA to those who for any reason are unable to follow or observe the particular form required under Section 13B?”. The Court also stated that, “Wouldn’t it be recognising the further changing dynamics of modern relationship and going about more practical to ameliorate the suffering of person in unfortunate matrimonial tie?”
In response to the aforementioned argument, the Court underscored that in cases involving married parties mired in acrimonious matrimonial discord marked by grave allegations, and in the absence of any prospect of reconciliation, withholding the dissolution of their marriage solely due to the inability of the party initiating the legal process to substantiate the fault of the other party would amount to coercing the parties to endure further suffering, irrespective of the presence or absence of fault. Such denial of divorce would inflict a form of psychological distress caused by the legal system.
Mandatory Prenuptial Agreements as a Necessity: In its judgment, the Court also underscored the necessity of instituting compulsory prenuptial agreements to be executed under the auspices of a designated authority. This process would involve counseling the parties regarding the potential pitfalls that marriages might encounter for a variety of reasons. Moreover, the Court recommended making it obligatory to report any breaches of the agreement whenever they occur. It was explicitly stated that failure to report a breach would preclude the party allegedly at fault from subsequently claiming that they refrained from reporting with the expectation of self-improvement.
Progress Toward No-Fault Divorces: Marking a significant advancement toward the concept of “no-fault divorces,” the Court, in its judgment, pondered the possibility that the expressed willingness of the parties or their petitions to dissolve the marriage might be tantamount to mutual consent to terminate the marriage, without delving into the particulars of the respective allegations proffered by the parties.
The Judge determined that, in this case, instead of delving into the matter of attributing fault to one party or the other to justify the dissolution of the marriage, they would opt to terminate the marriage under the purview of Section 13B of the Hindu Marriage Act, 1955. The Court regarded the respective pleas for dissolution submitted by both parties (attributing faults to the other party) as constituting their mutual consent to terminate the marriage. The effect of this dissolution would be from the date the Judge’s decision was rendered.
The Judge also acknowledged that some observers might interpret the Court’s decision as an attempt to evade its duty of meticulous evidence review. However, the Judge expounded that in certain cases, it is in the best interest of the state and society to promptly resolve contentious matters, particularly within family-related issues, in order to maintain domestic harmony.
“In the present case if prayer of husband or wife is accepted holding the other spouse guilty of matrimonial offense, the person against whom findings would go will take the matter to higher forum thus drag the other into rigmarole of further round of litigation with added agony and harassment. Similarly, refusal of their respective prayer, if they failed to prove their allegation, would also lead to law induced mental cruelty as discussed above”, stated the Jugdement.
Child Custody and Financial Support Determinations: The Court addressed issues concerning the custody of the child and the allocation of financial responsibilities. In the best interest of the child, the Court appointed both parents as joint legal guardians with shared responsibilities for the child’s educational and extracurricular activities. Emphasizing the importance of the father’s role, especially considering the geographic proximity within the Gurgaon community, the Court directed the mother to include the father’s name in the child’s school records. Furthermore, the Court granted the father daily access to the child and allowed him to spend weekends with her. The Court underlined that the mother, who had been the primary caregiver for an extended period, must ensure the child’s compliance with visitation arrangements.
Additionally, the Court ordered the child to consult with a child psychologist, focusing on addressing any unwarranted fears or concerns she might have regarding her father and helping her appreciate the significance of his role in her life. The Court encouraged frequent interactions between the child and her father, particularly during vacations and weekends.
In the context of financial support, the Court expressed reservations about the mother’s claimed expenses, suggesting they may be excessive. Consequently, the Court categorized the expenses into essentials, non-essential discretionary items, and luxury expenditures. Guided by the respective incomes of both parents, the Court mandated that they equally share the financial responsibility for 50% of the child’s justified expenses, focusing solely on necessary and discretionary items.
The decision has gained considerable attention on social media, with many endorsing it as a commendable and progressive legal choice. Deepika Narayan Bhardwaj, a filmmaker and social activist specializing in men’s issues, also commended the decision, terming it remarkable and progressive.
Bhardwaj stated, “There’s no point making young men & women doing rounds of courts for years for divorce when the marriage has completely broken down. This judgment by Judge Harish Kumar sets a precedent for its balanced nuance on matters of maintenance, custody and divorce. Prenuptial agreements are need of the hour along with shared parenting. For a balanced society we need to treat both men and women as equals and treat them as equal beings.”