Court cannot compel party to give consent for divorce by mutual consent, Delhi HC

The Delhi High Court yesterday delivered a comprehensive judgment in relation to divorce by mutual consent under Section 13B of the Hindu Marriage Act..The Division Bench of Justices Hima Kohli and Deepa Sharma delivered the judgment in a batch of contempt petitions after a Single Judge Bench had framed certain questions for consideration by a larger Bench..According to the first part of Section 13B, a petition for dissolution of marriage by a decree of divorce may be presented by both parties, on the ground that they have been living separately for a period of one year or more, and that they have mutually agreed that the marriage should be dissolved..The second part of the Section states that on the motion of both the parties made not earlier than six months after the date of the presentation of the petition, and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, pass a decree of divorce declaring the marriage to be dissolved..The question framed for reference by the Single Judge Bench was whether a party, who has undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) 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..Though the High Court answered this question in the affirmative, it held that the element of mutual consent was the sine qua non of passing a decree of divorce under Section 13B and withdrawal of consent even at the stage of the enquiry, as contemplated under Section 13B(2), is also in exercise of the right available to a party..The Court further held that the defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree..However, no direction can be issued even in contempt proceedings to compel the defaulting party to give its consent for a decree of divorce by mutual consent, as it is opposed to the object, policy and intent of Section 13B of the Hindu Marriage Act, the Court held..After perusing several landmark judgments concerning divorce with mutual consent, the Division Bench held,.“It can be seen that the Supreme Court has held that mutual consent is an indispensable condition for passing a decree of divorce under Section 13B of the Act and such a mutual consent should continue from the time of filing the First motion petition, till the divorce decree is passed and the marital ties finally snapped..The underlying thread of Section 13B is the mutuality aspect, a factor that should remain in force from the starting point i.e., the date when the parties jointly file the First motion petition under Section 13B(1) to the stage when they file the Second motion petition under Section 13B(2), till a final decree for divorce by mutual consent is granted by the concerned court.”.Regarding initiation of contempt proceedings, the Court held,.“Simply because a decree/order is executable in law, will not take away the court’s jurisdiction to initiate contempt proceedings and if satisfied that the said breach of the undertaking/settlement agreement/consent order or decree on the part of the defaulting party is willful and intentional or substantially interferes or tends to interfere with due course of justice, impose punishment under Section 13 of the 1971 Act..At the same time, the courts have held in several judicial pronouncements that contempt jurisdiction should be exercised sparingly and even if it finds that a party has committed contempt of court, courts can always exercise their discretion to drop contempt proceedings, depending on the facts and circumstances of a case.”.Read Judgment:

Court cannot compel party to give consent for divorce by mutual consent, Delhi HC

Ashutosh Gambhir

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