Supreme Court Advocacy : PSLC's Expertise and Authority

Section 13 B of the Hindu Marriage Act, 1955, provides for divorce by mutual consent, wherein both the parties present a joint petition before the Court, expressing their intention to end their marital ties. Usually, a settlement agreement or mediation report is being made, consisting of terms on which the parties agree, which usually consists of maintenance, alimony, distribution of property, visitation rights of child, etc. However, it has often been seen that, one party at a later stage withdraws the consent as given in view of the settlement agreement, even after passing of the decree based on the settlement and tries to selectively interpret the terms in his or her favor. In such circumstances, the Hon’ble Delhi High Court has dealt with the issue extensively.

To understand the different notions in a mutual divorce petition, it is essential to mention here in the case of Sureshta Devi v. Om Prakash [1], wherein the Hon’ble Supreme Court perused Section 13 B,

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorize the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Subsection (2) of Section 13B is clear on this point. It provides that “on the motion of both the parties…. if the petition is not withdrawn in the meantime, the Court shall… pass a decree of divorce…”. 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.”

Reneging from the Settlement is most comprehensively dealt with by the Delhi High Court, in the case of Avneesh Sood v. Tithi Sood [2], the relevant para of the judgment is as under:

“46. As aforesaid, the respondent was not bound to give the said undertaking to the Court. However, having given the same, voluntarily and consciously, with a view to derive the benefit of the agreement with the petitioner, if the respondent walks out of the same, only for the reason that she has changed her mind with regard to the custody/visitation rights of the minor child, she must take the consequences. Pertinently, even now, the respondent is not averse to proceeding with the mutual divorce petition and filing a second motion petition. However, she wants to do the same on her own terms in relation to alimony and custody/visitation rights, contrary to her earlier agreement which formed the basis of the first motion petition. It is, therefore, clear that her decision to withhold her consent for moving the second motion petition does not stem out of any new development or mitigating circumstance which would justify the same, but only on account of her having a change of mind on the aforesaid two aspects. It is not that the respondent has decided to continue with the marriage with the petitioner. She has not expressed any desire to resume marital life with the petitioner. It is not her case that her initial decision to move the mutual consent divorce petition was a decision taken by her in haste or was a mistake. Even now she does not dispute the fact that the marriage has, in fact, broken down but she wants to use her right not to give consent for the second motion petition as a bargaining point, which the petitioner prefers to call a black mail tactics.

47. No doubt the law gives the right to both the parties to take a decision whether, or not, to continue with the mutual consent divorce proceedings, and for that purpose a cooling off period of at least 6 months is provided under the scheme of the Act. It does not mean that an undertaking given by them to the Court to continue their consent even for moving the second motion petition can be said to be an illegal consent or undertaking or an undertaking recorded by the Court without jurisdiction. She, while giving her undertaking, did not undertake to commit an illegality, or to do anything which is barred by law. No one compelled the respondent to give the said undertaking. She could have kept her options open whether, or not, to give her consent for moving the second motion petition at the end of the cooling of period of six months. But she did consciously decide to give the said undertaking to the Court. This she did to derive benefit under the agreement with the petitioner.

48. If a party is permitted to resile from an undertaking given to the Court, in pursuance of an agreement arrived at between the parties, without any penal consequences, the same would completely destroy the sanctity attached to such solemn undertakings, and would encourage dishonesty and disrespect for the judicial process. It would also undermine the majesty and authority of courts, and instill doubts in the minds of the litigating public with regard to the efficacy of the judicial process and, in particular, with regard to the process of accepting undertakings by the Court and of the efficacy of the undertakings given to the Court by a party, and the acceptance thereof by the Court, as a part of a settlement process. It was on account of the respondent’s conduct of voluntarily giving her undertaking to the Court to abide by her settlement, and the acceptance thereof by the Court, which led the petitioner to agree to pay an amount of Rs. 7 crores in all to the respondent, and to part with a huge amount of Rs. 1.5 cores at the first motion stage. The respondent cannot make mockery of the law and mock at the Courts by now claiming that she has decided not to give her consent for moving the second motion petition, and that too for the reasons that she wants to renegotiate the terms of settlement, both in relation to her monetary compensation and custody/visitation rights in respect of the minor child. It is clear that the respondent has exploited and abused the process of the Court to serve her purpose, without intending to adhere to her solemn undertaking given to the Court.”

The Hon’ble Delhi High Court in the case of Anurag Goel vs. Chhavi Agarwal [3], had observed that any undertaking given before the court binds the parties to the undertaking and thus, the parties are not at liberty to withdraw or renege from such undertaking. Thus, after entering into an agreement, the parties file the settlement before the court as a precaution, to obtain the Court’s authority/execution over the document. If the parties are to be given liberty to walk away from their undertaking submitted to the court, not only will it be the travesty of justice but the faith in the judiciary will be eroded.

The Hon’ble Court in a coordinate bench in the case titled Smt. Anamika Khurana v. Sh. Rajiv Khurana [4], where the right of parties before the Court stands settled and crystallized as per their consent terms, their cause of action also becomes one with such agreement, thus any right against each other shall only be in terms of such consent terms/agreement. The relevant para reads as under:

“10. Once legal rights and obligations of the parties, including the rights of the plaintiff/wife to maintenance or other aspects and amounts as per law are settled and crystallized in terms of the MOU between the parties, breach of the same, i.e breach of an agreement, would not mean that the original cause of action revives. Law provides that breach of the terms of the agreement entitles a party to the agreement such as the plaintiff/wife to seek enforcement of the terms with additional and further reliefs of interest or penalty or damages and so on, however, the breach cannot revive an original cause of action which stands fused and settled by crystallizing the various terms as per the MOU entered into between the parties. Once there is an MOU as per various terms, including of lumpsum payment, rights of a plaintiff/wife would stand crystallized and satisfied as per the terms of the MOU and entitlement to compliances thereof. In case of non- compliance, the plaintiff has a remedy to enforce the terms of the MOU with claim for further/additional reliefs, but in law it cannot be that the plaintiff/wife can ignore the MOU and sue as if an original fresh cause of action exists. The first argument urged on behalf of the plaintiff is therefore rejected.

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14. In view of the above, as per the admitted facts, plaintiff has no legal right to claim rights in terms of the reliefs sought for in the suit by way of an original claim of maintenance under the provisions of the Hindu Adoptions and Maintenance Act and Protection of Women from Domestic Violence Act, 2005 and the right of the plaintiff/wife as per the law will only be for enforcing the rights under the MOU dated 27.7.2007 alongwith the further additional and consequential rights including of interest or penalty and so on, on account of stated breaches of the terms of the MOU by the defendant/husband.”

(Emphasis Supplied)

The Hon’ble High Court finds it appropriate to initiate civil contempt proceedings under Section 2(b) of the Contempts of Courts Act, 1971. However, the court has also stated that such power has to be used cautiously..

However, it is often the case that the affected party against whom such terms of settlement are violated do not prefer the remedies of contempt because of its gravity. Such consideration is usually derived by the welfare of the child as a remedy of contempt may have adverse effects on the child’s mental health.

Thus, Hon’ble High Court of Delhi in the case of Rajat Gupta v. Rupali Gupta [5], made observations as to the civil contempt as:

“17. Section 2(b) of Contempt of Courts Act defines ‘civil contempt’ and it means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of undertaking given to a Court. ‘Wilful’ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. …..”

(emphasis added)

In the case of Kanwar Singh Saini v. High Court of Delhi [6], the Apex Court observed that instead of preferring contempt proceedings the parties should prefer an execution petition under Order 21 Rule 32 of the CPC. The Court stated as under:

“18. In case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order 39 Rule 2-A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21 Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the 1971 Act when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order 39 Rule 2-A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree.”

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