The Bombay high court has cautioned family courts across Maharashtra to not grant decree of divorce on mere presentation of a joint application by the spouses for divorce by mutual consent.
The division bench of Justice Abhay Oka and Justice Girish Kulkarni said on Saturday that before granting decree of divorce by mutual consent, the family court must examine the genuineness as well as the reasonability of the consent terms, if any, signed by the parties. It also asked the family courts to check if the couple had lived separately for a year after filing the application and that they have been unable to live with each other.
“Mere filing of the petition under section 13B (of the Hindu Marriage Act, 1955) is no good,” said the bench while reversing divorce by mutual consent granted by the family court at Bandra to a 44-year-old Borivali resident and his 36-year-old wife. “All requirements of sub-section (2) of section 13B are required to be considered before a decree is pronounced on such a petition,” it added.
The marriage in this case was solemnised in February 1999 and the couple also have a son. In August 2011, the husband — a senior officer in sales tax department— approached the family court seeking divorce on various grounds and the permanent custody of their son.
During pendency of the divorce petition, on June 12, 2015, the family court referred the parties to a marriage counselor. On the same day, the parties filed a joint application requesting the court to convert the petition for divorce by mutual consent and also filed consent terms singed by them. The husband also deposited a demand draft of Rs 3 lakh to be paid to the wife as permanent alimony. The marriage counselor also submitted his report stating that reconciliation was not possible for the couple.
The marriage petition was then taken up by the family court for hearing on June 20, 2015 – the date fixed by the court on husband’s request, when he was present, but not the wife. On that day, the family court allowed the petition and granted decree of divorce by mutual consent, in wife’s absence.
The wife then challenged the decree contending that her husband had cheated her. According to her, he had agreed to pay her Rs 12 lakh as the permanent alimony, but since he was working as government official, only a sum of Rs 3 lakh was shown on record, and a separate agreement was executed by his relatives promising to pay her remaining amount of Rs 9 lakh, which she had not received.
The high court found that the decree was passed by the family court quite casually. The bench noted that section 13B(1) requires spouses applying for divorce by mutual consent that they have lived separately for at least one year and have not been able to live together and section 13B (2) requires the family court to ensure these conditions are satisfied. Besides, the judges noted that section 23(1)(bb) imposes an obligation on the family court to ensure that the consent terms have not been obtained by force, fraud or undue influence.
High court held that the family court was under obligation to verify and re-verify from the wife, if the consent terms were genuine, as also the reasonableness of the terms, and struck down the decree saying the family court had completely overlooked the mandate of the legal provisions. It has now sent the matter back to the family court for fresh hearing in accordance with the legal provisions.