Delhi HC Issues Guidelines for Recording Undertaking in Divorce by Mutual Consent Cases


May 17, 2018

In this recent judgment passed by the Delhi High Court, the Court was confronted with a batch of contempt petitions, alleging inter alia willful disobedience of the undertaking given by a spouse to appear, sign and file, both, the Section 13B(1) petition and the Section 13(B)(2) motion under the Hindu Marriage Act, 1955 (HMA).

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Section 13B(1) of the Hindu Marriage Act   provides for a petition for dissolution of marriage to the district court by both the parties to a marriage together, 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.

Further under Section 13B(2) of HMA it is stated that if the divorce petition under Section 13B(1) is not withdrawn within the prescribed time then the court shall, on being satisfied and after hearing the parties pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

The issues that were raised in the instant case were answered by the Division Bench of the Delhi High Court in the following manner:

Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both and has also undertaken to appear before the said Court for obtaining divorce ―can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13B(2) of the Act?

The answer to Question (A) is yes. The distinguishing feature of Section 13B of the Hindu Marriage Act is that it recognizes the unqualified and unfettered right of a party to unilaterally withdraw the consent or reconsider/renege from a decision to apply for divorce by mutual consent, notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree, to cooperate with the other spouse to file a petition under Section 13B(1) or a second motion under Section 13B(2) of HMA, or both. Withdrawal of the consent even at the stage of the enquiry, as contemplated under Section 13B(2) of HMA, is also in exercise of the right available to a party under the very same provision.

Whether by undertaking before a Court to file a second motion under Section 13B(2) of HMA at Section 13B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13B(2) of HMA?

Notwithstanding any undertaking given by a party before a court to file a Second motion under Section 13B(2) of HMA or at the Section 13B(1) stage or in any separate court proceedings, its right to rethink/renege under Section 13B(2) of HMA, cannot be waived for the reason that such a waiver is proscribed by the Statute that keeps a window open for the parties to withdraw their consent at any stage till the decree of divorce is finally granted.

The right of withdrawal of consent in the above proceedings can be exercised at any stage and exercise of such a discretion cannot be treated as being opposed to public policy.

Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of HMA, 1955 or both for obtaining divorce?

The Division Bench of the Delhi High Court in the case issued to be followed by the Court while recording undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955.  

The guidelines and the entire case can be accessed here.

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About the Author

Shilpi Sharan

- Shilpi Sharan is the Editor at Vakilno1.com - an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.