Precaution to be taken by matrimonial court prior to passing of decree for divorce by mutual consent

Considering these glaring facts and the dispensation of justice by the Family Courts, we would sound a note of caution to the learned Presiding Officers of the Family Court, that in matters where parties have sought a decree of divorce by mutual consent, a complete compliance of section 13-B read with section 23 (bb) in its letter and spirit is required to be followed, as also the compliance of the requirements thereof be noted in the final orders which would be pronounced.

23. In considering a petition for divorce by mutual consent under section 13-B of the Act, learned Judges of the Family Court shall hear the parties before a judgment is to be pronounced and also on consent terms/compromise, the parties may enter into, so as to  examine all the parameters of law touching the consent terms including reasonableness of the consent terms. Further it shall also be examined whether the consent is a free consent and the same is not in any manner influenced by fraud, coercion, undue influence as section 23 (i) (bb) would provide and accordingly observations be made and recorded in the judgment. Section 23 (1) (bb) contemplates a free consent. It is well settled that fraud is an act of deliberate deception with a design of securing something by taking advantage of another. It would be a deception to gain from another's loss and it would be cheating if intended to get an advantage. These are very crucial parameters which are required to be very meticulously considered by the Court before pronouncing the decree of divorce by mutual consent exercising jurisdiction under section 13-Bread with section 23 (1) (bb) of the Act. Only after such a procedure is followed there would be complete compliance of section 13-B and section 23

(i) (bb) of the Act.

24. We may also note that even if a petition under section 13-B of the Act is filed, sub section (1) thereof, contemplates a solemn statement that the parties were living separately for one year or more and they have not been able to live together and they have  mutually agreed that their marriage be dissolved with further requirement that after six months of the said Petition being presented, the Court is required to be satisfied after hearing the parties and after making an inquiry, as it thinks fit, to verify the correctness of the averments, only then the Court would proceed to pass a decree. Thus, it is clear, that mere filing of the Petition under section 13-B is no good. All requirements of sub-section (2) of section 13-B are required to be considered before a decree is pronounced on such a petition. The Court is required to be satisfied of the bonafides of the consent of the parties and if during the course of inquiry, the Court is of the opinion that there is real and mutual consent, the Court does not get the jurisdiction to pronounce a decree of divorce by mutual consent as held by the Supreme Court in Smt Sureshta Devi vs Om PrakashAIR 1992 Supreme Court 1904). Their Lordships in para 14 have observed thus:

" Sub-section (2) requires the Court to hear the parties which means both the parties if one of the parties at that stage says that 'I have withdrawn any consent" or I am not a willing party to the divorce" the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce underSection 13-B. Mutual consent should continue on the divorce decree is passed it is a positive requirement of the Court to pass a decree of divorce. The consent must continue to decree nisi and must be valid subsisting consent when  the case is heard. (See (I) Halsbury Laws of England Fourth edition Vol 13 para 645 (ii) Rayden on Divorce 12 th Ed Vol 1 pg 29 and (iii) Beales vs Beales (1972) 2 All ER 667 at pg 674 (1972) 2 WLR 972.)."

Bombay High Court

Mrs. Bharti Bhausaheb Aher vs Mr. Bhausaheb Kautik Aher on 6 January, 2017

Bench: A.S. Oka

 FAMILY COURT APPEAL NO.165 OF 2015 

Citation:2017 SCC OnLine Bom 7,2017(1) ALLMR497

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What is duty of family court if child is hesitant to meet with one of parent?

 Family Courts were created with infrastructure having associations of
counsellors. All Family Courts at Delhi have two counsellors attached to the
Court. The counsellors are trained at breaking the ice.
 The learned Judge Family Court ought not to have rushed through the
matter in a casual manner. One interaction with the child was not enough.
If a child is hesitant to be with a parent, it is duty of the Presiding Judge of
the Family Court to have the child counselled with the help of the
counsellors attached to the Court. Every effort has to be made to counsel
both parents to spare the child the agony of their separation. The parents
have to be counselled to keep the child out of the litigation. Both spouses
should be encouraged to, in turn encourage the child to meet the other
spouse.
Of course, this process of breaking the ice would be slow and
cumbersome. But it has to be followed. Meaning thereby, if a Judge of a
Family Court finds a child hesitant to meet either parent, it should not be the
ground to deny proper access to the spouse in question.
Meeting a child for an hour every month and that too in the Court
premises is not sufficient. In such a situation the application seeking interim
custody for a few hours each week should be deferred and situation
monitored for a period of few months. This period should be utilized for the
counsellors to break the ice.

 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : September 01, 2016
MAT.APP.(F.C.) 82/2016 & CM 23339/2016

ADITYA MAHAJAN  Vs SHACHI MAHAJAN 
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

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Whether matrimonial courts are duty bound to make efforts for reconciliation in matrimonial matters?

It would also be pertinent to mention here that as per the mandate of section 9 of The Family Courts Act, 1984 and section 23(2) of the Hindu Marriage Act, the Matrimonial Courts should make every positive endeavour to bring about reconciliation between the parties so that the matter can be amicably settled on mutually acceptable terms at the very threshold. The courts should make efforts at the initial stage itself so that the burden of the courts is also lessened and the parties are also saved from the arduous litigation. The services of the mediators and counselors especially appointed for this purpose are at the disposal of the Family Courts, and should be utilized to the fullest so that parties are reconciled or agree to part mutually and amicably. Let the object of section 9 of the Family Courts Act and section 23(2) HMA not be defeated by a ritualistic exercise but a concerted, cohesive and conscientious effort on the part of the Matrimonial Courts to bring the parties to a pacific agreement. In-time intervention of the courts dealing with marital disputes with devotion of sufficient hearings at the initial stage itself may save such parties this long ordeal. The courts should make sustained and persistent attempts even when the pleadings are complete and evidence led, as it will certainly yield potent results. 

Delhi High Court

Smt.Kamlesh Kumari vs Shri Mehtab Singh on 16 January, 2012

Author: Kailash Gambhir

Citation: 2012IIAD(Delhi)893, 

2013IAD(Delhi)421, 186(2012)DLT332,I(2012)DMC247

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