Thursday, 22 June 2017

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

 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 the5
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.
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.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
 First Appeal No. 198 of 2008

Seema Pathak .
 V
Chotelal Pandey .
PRESENT :  MR. JUSTICE H. C. MISHRA
 MR. JUSTICE Dr. S.N. PATHAK
Citation: AIR 2017 Jharkhand 59

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 filed2
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.
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.3
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.
(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 the4
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 the5
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.
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.

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