The Delhi High Court on Tuesday ruled that no one in an estranged marriage can be compelled to take divorce by mutual consent even if one of them decides to retract from the undertaking given to the court at the time of filing for dissolution of the marriage.
At the same time, a defaulting spouse can be held liable for civil contempt for breaching the terms and conditions agreed before the court, a Bench of Justices Hima Kohli and Deepa Sharma said.
The court was dealing with the complex issue of whether a spouse who has initiated proceedings for divorce by mutual consent under Section 13B of the Hindu Marriage Act can be held liable for contempt if he or she reconsiders or retracts from the decision of taking divorce by mutual consent.
Matter of contention
The subject became a matter of contention between 17 couples, where one of the spouses had filed for initiation of contempt proceedings against the other for breaching the settlement agreement.
The Bench noted that in such a situation if one of the spouses suffers disadvantage or irreversible prejudice, the family court can direct “restoration of status quo ante [the way things were before] in every possible way”.
It said the family court can also direct the defaulting spouse to give up all the benefits that he or she have enjoyed as a result of the settlement agreement.
“The only rider to the above is that 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 Bench remarked.
The Bench also clarified that the right of withdrawal of consent in the proceedings for divorce by mutual consent can be exercised at any stage.
“Once a party decides to have a second thought and on reflection, backs off, the court concerned cannot compel the defaulting party to give its consent on the basis of an earlier settlement/undertaking,” the Bench said.
“…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 Bench said adding, “Any other interpretation given to the aforesaid provision would negate the underlying aim, object and intent of the said provision.”