Wednesday, 2 December 2015

What is “Pre-existing duty doctrine”?

 One more doctrine is to be taken into consideration i.e.
“Pre-existing duty doctrine”. It is a principle under the

Contract Act that states that if a party to a contract is under a
pre-existing duty to perform, then no consideration is given for
any modification of the contract and the modification is
therefore voidable. In the 13th edition of the Pollock & Mulla
Indian contract and Specific relief Act in Vol.1, it is mentioned
at page 101 about the Pre-existing obligation under law which
provides that:-
“The performance of what one is already bound to do,
either by general law or by a specific obligation to the
other party, is not a good consideration for a promise;
because such performance is no legal burden to the
promise, but rather relives him of a duty. Neither is
the promise of such performance a consideration,
since it adds nothing to the obligation already
existing.”
We can apply this principle in the present case. As
discussed above, it is a duty of the respondent-husband to
take care of the health and safety of the petitioner-wife. In the
instant case also it is a primary duty of the husband only to
provide facilities for the treatment of the petitioner. This is a
pre-existing duty of the husband, provided the husband has
sufficient means and he is diligently doing his part in taking

care of her. In the present case, by the settlement agreement
the respondent-husband is promising to do something which
he is already duty bound, is not a valid consideration for the
settlement.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO. 702 OF 2015
Vennangot Anuradha Samir …..Petitioner
versus
Vennangot Mohandas Samir …Respondent
Dated;December 02, 2015

Heard learned counsel appearing for the parties and
perused the records along with the affidavits and petitions.
2. Admittedly, the marriage of the petitioner with the
respondent was solemnized in April, 2010 according to Hindu
Vedic Rites. At the time of marriage, the respondent-husband
was a bachelor and the petitioner-wife was a divorcee. It was
a love marriage after both of them came in contact with each
other in October, 2006. In 2013, some misunderstanding
developed between the petitioner and the respondent as a
result of which the petitioner left the house.

3. In 2015, the respondent-husband filed a suit for
dissolution of marriage by a decree of divorce under Section
13(1)(1a) of the Hindu Marriage Act on the ground that the
petitioner-wife after solemnization of the marriage had
committed various acts of cruelty. Admittedly, the petitioner
is living in Hyderabad with her parents. The petitioner,
therefore, moved an application before this Court for transfer
of divorce suit pending before the Family Court Bombay to the
Family Court at Hyderabad.
4. The transfer petition was listed before this Court on
28.08.2015, when, at the request of the counsel for the
parties, the matter was referred to Supreme Court Mediation
Centre for amicable settlement. Before the Mediation Centre,
a Settlement Agreement was filed on 26.10.2015. In terms of
the said Settlement Agreement, the respondent-husband
agreed to pay Rs.12,50,000/- (Twelve Lakhs Fifty Thousand
only) towards full and final settlement as alimony,

maintenance for past and future or any other claim of the
petitioner. The respondent-husband had agreed to pay the
said amount of Rs.12,50,000/- (Twelve Lakhs Fifty Thousand
only), by way of Bank draft in the name of the Registrar,
Supreme Court, which shall be paid to the petitioner-wife at
the time of passing of decree of divorce by mutual consent.
5. On 6th November, 2015, the case was again listed along
with the office report and Settlement Agreement. The matter
was adjourned to enable the parties to file appropriate
application.
6. Consequently, an application was filed purported to be
under Section 13B of the Hindu Marriage Act with a prayer to
treat the divorce petition pending before the Family Court,
Bombay as an application under Section 13B of the Act and
treat the present application as second motion and grant
divorce by way of mutual consent.

7. In the said application it was mentioned that petitioner wife
is suffering life threatening disease and urgently requires
funds for her medical treatment and also that she has to
depend on herself for proper care.
8. On 17.11.2015, the case was adjourned at the request of
the petitioner-wife, to enable her to file additional documents
in support of her case that she is suffering with life
threatening disease. In compliance thereof additional
documents have been brought on record.
9. Perusal of the document i.e. the medical certificate,
reveals that a lump in the breast was found which highly
suggests malignancy. The doctors recommended for an
immediate surgery and chemotherapy ranging from 6 to 8
cycles of adjuvant. It is mentioned that approximate costs per
cycle will cost about Rs. 50,000/-.

10. From the above mentioned admitted facts, it is evident
that the petitioner needs sufficient amount of money for the
treatment of breast cancer. Hence, it cannot be ruled out that
in order to save her life by getting money, she agreed for a
settlement of dissolution of marriage. On these facts, a
question that came in our mind is as to whether the Court
would be justified in granting a decree for divorce on the basis
of settlement when the wife is suffering with breast cancer and
is in need of money for her treatment and can that be the
consideration for dissolution of marriage.
11. Hindu marriage is a sacred and holy union of husband
and wife by virtue of which the wife is completely transplanted
in the household of her husband and takes a new birth. It is a
combination of bone to bone and flesh to flesh. To a Hindu
wife her husband is her God and her life becomes one of the
selfless service and profound dedication to her husband. She
not only shares the life and love, but the joys and sorrows, the
troubles and tribulation of her husband and becomes an

integral part of her husband’s life and activities. Colebrooke
in his book “Digest of Hindu Law Volume II” described the
status of the wife thus:-
“A wife is considered as half the body of her
husband, equally sharing the fruit of pure and
impure acts:- whether she ascend the pile after
him or survive for the benefit of her husband,
she is a faithful wife.”
12. Further Colebrooke in his book Digest of Hindu Law
Volume-II quoted the Mahabharata at page 121 thus:-
“Where females are honoured, there the deities
are pleased; but where they are unhonoured
there all religious acts become fruitless.”
This clearly illustrates the high position which is
bestowed on Hindu women by the Shastric law.
13. From the study of Hindu Law and different religious
books, it cannot be disputed that after marriage law enjoins
the corresponding duty on the husband to look after her
comforts and not only to provide her food and clothes but to
protect her from all calamities and to take care of her health
and safety.

14. In the peculiar facts of the present case if we consider the
instant settlement, which is nothing but a contract to dissolve
the marriage, the Court has to satisfy itself that the contract is
legal and valid in the eye of law. From perusal of the facts of
the case and the development which has taken place in the
present case, it seems that the petitioner-wife agreed for
divorce by mutual consent on the condition that the
respondent-husband will pay her Rs.12,50,000/- as full and
final settlement. The petitioner-wife is suffering from such a
disease which has compelled her to agree for the mutual
consent divorce. The fact that petitioner-wife is ready for the
mutual consent divorce after knowing about her medical
condition raises a suspicion in our mind as to whether the
consent obtained from the petitioner-wife is free as required by
law for granting the decree of divorce by mutual consent.
15. Section 13-B of the Hindu Marriage Act makes a
provision of divorce by mutual consent, which reads as under:-
“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 marriage 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 that 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 the decree.”
16. Section 23 casts a duty upon a Court to record its
satisfaction before passing a decree in a suit or proceeding.
Section 23(1)(bb) is also worth to be quoted hereinbelow:-
“23.Decree in proceedings :—
(1)In any proceeding under this Act, whether
defended or not, if the court is satisfied that—
(a) ……………………………………………
(b) ……………………………………………
(bb) when a divorce is sought on the ground of
mutual consent, such consent has not been
obtained by force, fraud or undue influence.”
8Page 9
17. This Court elaborately discussed the aforesaid provisions
in the case of Sureshta Devi vs. Om Prakash, (1991) 2 SCC
25, and observed thus:-
“……What is significant in this provision is that there
should also be mutual consent when they move the
court with a request to pass a decree of divorce.
Secondly, the court shall be satisfied about the bona
fides and the consent of the parties. If there is no
mutual consent at the time of the enquiry, the court
gets no jurisdiction to make a decree for divorce. If the
view is otherwise, the court could make an enquiry
and pass a divorce decree even at the instance of one
of the parties and against the consent of the other.
Such a decree cannot be regarded as decree by mutual
consent.”
18. If we consider the provisions of Indian Contract Act, it
provides that consent is said to be free when it is not caused
by “undue influence” as defined in Section 16 of the Act. The
contract is said to be induced by “undue influence” where the
relations subsisting between the parties are such that one of
the parties is in a position to dominate the will of the other
and uses that position to obtain an unfair advantage over the
other.
19. One more doctrine is to be taken into consideration i.e.
“Pre-existing duty doctrine”. It is a principle under the

Contract Act that states that if a party to a contract is under a
pre-existing duty to perform, then no consideration is given for
any modification of the contract and the modification is
therefore voidable. In the 13th edition of the Pollock & Mulla
Indian contract and Specific relief Act in Vol.1, it is mentioned
at page 101 about the Pre-existing obligation under law which
provides that:-
“The performance of what one is already bound to do,
either by general law or by a specific obligation to the
other party, is not a good consideration for a promise;
because such performance is no legal burden to the
promise, but rather relives him of a duty. Neither is
the promise of such performance a consideration,
since it adds nothing to the obligation already
existing.”
20. We can apply this principle in the present case. As
discussed above, it is a duty of the respondent-husband to
take care of the health and safety of the petitioner-wife. In the
instant case also it is a primary duty of the husband only to
provide facilities for the treatment of the petitioner. This is a
pre-existing duty of the husband, provided the husband has
sufficient means and he is diligently doing his part in taking

care of her. In the present case, by the settlement agreement
the respondent-husband is promising to do something which
he is already duty bound, is not a valid consideration for the
settlement.
21. In the peculiar facts and circumstances of the case, we,
therefore, pass the following order:-
(i) The transfer petition for the transfer of matrimonial suit
being petition No.A-642 of 2015 pending before the Family
Court at Bombay, Maharashtra to Family Court at Hyderabad
is allowed. The petition is ordered to be transferred
accordingly. The transferor court shall forthwith transmit the
record of the aforesaid case to the transferee court.
(ii) The respondent-husband shall pay a sum of Rs.Five Lacs
(Rs.5,00,000/-) out of Rs.12,50,000/- to the petitioner-wife
immediately within a week for her treatment and meeting
other medical expenses.
(iii) After the petitioner is fully cured from the disease or
within six months whichever is earlier, the Family Court at

Hyderabad, where the divorce petition is ordered to be
transferred, shall take up the case along with a fresh
application that may be filed by the parties under Section 13B
for divorce by mutual consent. After compliance of all the
formalities, the Family Court at Hyderabad shall dispose of
those petitions in accordance with law after recording its
satisfaction and giving opportunity of hearing to both the
parties.
……………………J.
(M.Y. Eqbal)
…………………….J.
(C. Nagappan)
New Delhi
December 02, 2015

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