High Court · 2024
Legal Reasoning
1 FCA / 37 / 2023IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADFAMILY COURT APPEAL NO. 37 OF 2023Aniket Arun DhatrakDied Through1] Rajashree Arun Dhatrak (Mother) Age : 56 years, Occupation : Household,2] Abhijeet Arun Dhatrak (Brother) Age : 32 years, Occupation : Service,3] Anurag Arun Dhatrak (Brother), Age : 28 years, Occupation : Agriculture All Residents of : 108, Income Tax Colony, Nakane Road, Deopur, Dhule Presently at : 301, Shubham Residency, Postal Colony, Dattamandir Road, Wakad, Pune.. Applicants VersusShalaka Aniket DhatrakAge : 27 years, Occupation : Housewife,Resident of : C/o. Deepak Ramchandra Naik,Gala No. 6, Near Rani Medical,Dhule.. Respondent...Advocate for appellants : Mr. Mukul S. KulkarniAdvocate for the respondent : Mr. Subodh P. Shah... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 24 JULY 2024PRONOUNCED ON : 01 AUGUST 2024JUDGMENT (MANGESH S. PATIL, J.) :Admit. 2 FCA / 37 / 20232.At the joint request of the parties, we have heard both thesides finally at the stage of admission.3. We had been called upon to decide a very interestingissue, as to whether the right to sue survives to the mother andbrothers of the deceased husband of the respondent - wife in a petitionfor divorce by mutual consent filed under section 13-B of the HinduMarriage Act, 1955 (‘Act’), when he dies even before the secondmotion under sub section (2) of section 13-B of the Act is moved. 4. The facts can be stated in brief as under:i) Deceased (hereinafter referred to as ‘Aniket’) andrespondent - Shalaka submitted a petition for divorce by mutualconsent on 14-10-2020. ii) Pursuant to some mutual agreement, Aniket had agreed topay Rs.5,00,000/- to Shalaka while filing of petition as per terms hepaid Rs.2,50,000/- to her. iii) Unfortunately, Aniket died during COVID - 19 on 15-04-2021. iv)Respondent - Shalaka submitted a purshis (Exhibit - 8) on28-04-2021, withdrawing the consent for granting divorce andrequested for disposing of the petition.
Decision
3 FCA / 37 / 2023v) However, the appellants herein who are the mother andbrothers of Aniket submitted application (Exhibit - 15) purportedlyunder Order XXII Rule 3 of the Code of Civil Procedure and requestedfor an order for allowing them to be brought on record as his legalheirs. Respondent - Shalaka opposed the application stating that thecause of action did not survive.vi) Even before the impugned order was passed, AdvocateD.G. Patil of Dhule Bar Association apparently un-connected with eitherof the sides, submitted an application (Exhibit - 17) stating that fatherof Aniket had handed over Rs.2,50,000/- to him for being paid at thetime of final decision. The Family Court permitted him to deposit it andaccordingly, the amount was deposited in Court on 21-09-2021. vii)The appellants submitted application (Exhibit – 19),soliciting a direction to respondent – Shalaka, to re-deposit the amountof Rs.2,50,000/- received by her on 14-10-2020 as per the consentterms filed on record. Respondent - Shalaka opposed that applicationas well. viii) Accordingly, the learned Judge of the Family Court heardboth the sides and by a common order under challenge, refusedpermission to the appellants to come on record as legal heirs ofdeceased Aniket and as requested by the respondent - Shalaka,disposed of the petition for divorce. Even the appellants’ request for 4 FCA / 37 / 2023direction to her to re-deposit the money i.e. Rs.2,50,000/- wasrejected. Hence, this Appeal.5. Learned advocate Mr. Kulkarni for the appellants wouldtake us through the provisions of section 13-B of the Act and wouldsubmit that though the right to seek a divorce is a personal right andwould not survive to the legal heirs. However, pursuant to the terms ofsettlement, respondent - Shalaka was paid an amount of Rs.2,50,000/-and merely a procedural compliance was to be made by moving asecond motion under sub-section (2) of section 13-B of the Act. Sincesubstantial part that was to be performed by deceased - Aniket wasalready performed, in the light of division bench decision of this Courtin the matter of Prakash Alumal Kalandari V. Jahnavi PrakashKalandari; AIR 2011 Bom. 119, the request of respondent - wifeseeking to withdraw her consent would tantamount to her unjust andinequitable enrichment and deceased - Anikat had earned the right toseek divorce by mutual consent. 6. Mr. Kulkarni would also seek to rely upon the decisions inthe matters of Yallawwa v. Shantavva; (1997) 11 SCC 159 and threedecisions of Single Judges of this Court in; i) Jayshree RameshLondhe Vs. Ramesh Bhikaji Londhe; AIR 1986 Bom. 302,(ii)Kamalabai V. Ramdas Manga Ingale; AIR 1981 BOM. 187 and(iii) Lubhan Gopal Nikhare Vs. Sandhya; 2012(3) Mh.L.J. 378. 5 FCA / 37 / 20237. Mr. Kulkarni would submit that respondent - Shalaka hadmerely submitted a purshis Exhibit – 8, without seeking to make outany ground as contemplated under section 23 of the Act, wherebyexception could have been taken on the ground that her consent wasvitiated by coercion, fraud or undue influence. 8. Per contra, the learned advocate for respondent - wife -Shalaka would submit that admittedly, a mandatory second motion, ascontemplated under sub section (2) of section 13-B of the Act wasnever moved. No right had accrued in deceased - Aniket which couldhave survived to the appellants. The right to seek divorce is a personalright. No decree for divorce was ever passed and the appellants couldnot have been legally allowed to prosecute the cause after demise ofAniket. Right to sue did not continue beyond the lifetime of appellant -Aniket and, therefore, no fault can be found in the impugned order inrefusing permission to the appellants to come on record. 9. Mr. Shah would submit that the decision in the matter ofYallawwa (supra) would rather operate against the appellants. Theissue was considered even in the matters of (i) Sureshta Devi V. OmPrakash; (1991) 2 SCC 25, (ii) Hitesh Bhatnagar V. DeepaBhatnagar; (2011) 5 SCC 234 and (iii) Kimti Lal V. Indu Kundra;1999 (50) DRJ 459 (Delhi High Court). He would submit that Hitesh 6 FCA / 37 / 2023Bhatnagar (supra) has even considered the aspect of withdrawal ofconsent by either side beyond the period of 18 months. He wouldsubmit that it has been held that a party can withdraw the consent tillthe moment a decree for divorce is passed even beyond the period of18 months.10. We have considered the rival submissions and perusedthe papers. There is not much of dispute on facts. 11. It would be appropriate to reproduce section 13-B of theAct, which reads as under : “Section 13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolutionof marriage by a decree of divorce may be presented to thedistrict court by both the parties to a marriage together, whethersuch marriage was solemnized before or after thecommencement of the Marriage Laws (Amendment) Act, 1976(68 of 1976) on the ground that they have been livingseparately for a period of one year or more, that they have notbeen able to live together and that they have mutually agreedthat the marriage should be dissolved.(2) On the motion of both the parties made not earlier than sixmonths after the date of the presentation of the petition referredto in sub-section (1) and not later than eighteen months afterthe said date, if the petition is not withdrawn in the meantime,the court shall, on being satisfied, after hearing the parties andafter making such inquiry as it thinks fit, that a marriage hasbeen solemnized and that the averments in the petition aretrue, pass a decree of divorce declaring the marriage to bedissolved with effect from the date of the decree.”12. A bare reading of entire section 13-B makes it abundantlyclear that submission of second motion under sub section (2) is a 7 FCA / 37 / 2023condition precedent for passing a decree of divorce. It is only onmaking of such a motion by both the sides, the Court can proceed forhearing both the sides and can undertake requisite enquiry as deemednecessary. Upon its satisfaction that the marriage was solemnized andthe averments in the petition were true that it can pass the decree.Keeping aside the aspect of the period mentioned in sub-section (2), itis only on the basis of a motion, that the Court would get the jurisdictionto undertake further enquiry for reaching its decision aboutperformance of marriage and the contents of the petition. It is notautomatic. In other words, even after filing of a petition for divorce bymutual consent, if no motion is moved by the parties jointly, there wouldbe no question of Court undertaking any further enquiry. It cannothappen at the instance of only one of the spouses. 13. Suffice for the purpose to refer to the decision in the matterof Hitesh Bhatnagar (supra), which in turn referred to and relied uponthe following observations from Sureshta Devi (supra): “9. The ‘living separately’ for a period of one year should beimmediately preceding the presentation of the petition. It isnecessary that immediately preceding the presentation ofpetition, the parties must have been living separately. Theexpression ‘living separately’, connotes to our mind not livinglike husband and wife. It has no reference to the place of living.The parties may live under the same roof by force ofcircumstances, and yet they may not be living as husband andwife. The parties may be living in different houses and yet theycould live as husband and wife. What seems to be necessary isthat they have no desire to perform marital obligations and withthat mental attitude they have been living separately for aperiod of one year immediately preceding the presentation ofthe petition. The second requirement that they ‘have not beenable to live together’ seems to indicate the concept of broken 8 FCA / 37 / 2023down marriage and it would not be possible to reconcilethemselves. The third requirement is that they have mutuallyagreed that the marriage should be dissolved.10. Under sub-section (2) the parties are required to make ajoint motion not earlier than six months after the date ofpresentation of the petition and not later than 18 months afterthe said date. This motion enables the court to proceed with thecase in order to satisfy itself about the genuineness of theaverments in the petition and also to find out whether theconsent was not obtained by force, fraud or undue influence.The court may make such inquiry as it thinks fit including thehearing or examination of the parties for the purpose ofsatisfying itself whether the averments in the petition are true. Ifthe court is satisfied that the consent of parties was notobtained by force, fraud or undue influence and they havemutually agreed that the marriage should be dissolved, it mustpass a decree of divorce.....13. From the analysis of the section, it will be apparent thatthe filing of the petition with mutual consent does not authorisethe court to make a decree for divorce. There is a period ofwaiting from 6 to 18 months. This interregnum was obviouslyintended to give time and opportunity to the parties to reflect ontheir move and seek advice from relations and friends. In thistransitional period one of the parties may have a secondthought 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 suchcourse. The section does not provide that if there is a change ofmind it should not be by one party alone, but by both. The HighCourts of Bombay and Delhi have proceeded on the groundthat the crucial time for giving mutual consent for divorce is thetime of filing the petition and not the time when theysubsequently move for divorce decree. This approach appearsto be untenable. At the time of the petition by mutual consent,the parties are not unaware that their petition does not by itselfsnap marital ties. They know that they have to take a furtherstep to snap marital ties. Sub-section (2) of Section 13-B isclear on this point. It provides that ‘on the motion of both theparties. … if the petition is not withdrawn in the meantime, thecourt shall … pass a decree of divorce …’. What is significant inthis provision is that there should also be mutual consent whenthey move the court with a request to pass a decree of divorce.Secondly, the court shall be satisfied about the bona fides andthe consent of the parties. If there is no mutual consent at thetime of the enquiry, the court gets no jurisdiction to make adecree for divorce. If the view is otherwise, the court couldmake an enquiry and pass a divorce decree even at the 9 FCA / 37 / 2023instance of one of the parties and against the consent of theother. Such a decree cannot be regarded as decree by mutualconsent.”14. Incidentally, in Hitesh Bhatnagar (supra), it was noticedthat a two Judge bench in Ashok Hurra Vs. Rupa BipinZaveri; (1997) 4 SCC 226 had expressed a view that observations inSureshta Devi (supra) were too wide and did not logically accord withsection 13-B(2). The observations in Ashok (supra) were held to benot ratio decidendi. 15. Rather, Hitesh Bhatnagar (supra) referred to a threeJudge bench decision in the matter of Smruti Pahariya Vs. SanjayPahariya; (2009) 13 SCC 338 and it was observed that the ratio laiddown in Sureshta Devi (supra) was approved in Smruti Pahariya, itrelied upon following paragraphs from Smruti Pahariya (supra) :“40. In the Constitution Bench decision of this Court in RupaAshok Hurra [(2002) 4 SCC 388] this Court did not express anyview contrary to the views of this Court in Sureshta Devi [(1991)2 SCC 25]. We endorse the views taken by this Court inSureshta Devi, as we find that on a proper construction of theprovision in Sections 13-B(1) and 13-B(2), there is no scope ofdoubting the views taken in Sureshta Devi. In fact the decisionwhich was rendered by the two learned Judges of this Court inAshok Hurra [(1997) 4 SCC 226] has to be treated to be onerendered in the facts of that case and it is also clear by theobservations of the learned Judges in that case.41. None of the counsel for the parties argued forreconsideration of the ratio in Sureshta Devi.42. We are of the view that it is only on the continued mutualconsent of the parties that a decree for divorce under Section13-B of the said Act can be passed by the court. If petition fordivorce is not formally withdrawn and is kept pending then onthe date when the court grants the decree, the court has a 10 FCA / 37 / 2023statutory obligation to hear the parties to ascertain theirconsent. From the absence of one of the parties for two to threedays, the court cannot presume his/her consent as has beendone by the learned Family Court Judge in the instant case andespecially in its fact situation, discussed above.43. In our view it is only the mutual consent of the parties whichgives the court the jurisdiction to pass a decree for divorceunder Section 13-B. So in cases under Section 13-B, mutualconsent of the parties is a jurisdictional fact. The court whilepassing its decree under Section 13-B would be slow andcircumspect before it can infer the existence of suchjurisdictional fact. The court has to be satisfied about theexistence of mutual consent between the parties on sometangible materials which demonstrably disclose such consent.”Referring to all these, the following were the conclusions drawn inHitesh Bhatnagar (supra): “14. The language employed in Section 13-B(2) of the Act isclear. The court is bound to pass a decree of divorce declaringthe marriage of the parties before it to be dissolved with effectfrom the date of the decree, if the following conditions are met:(a) A second motion of both the parties is made not before6 months from the date of filing of the petition as requiredunder sub-section (1) and not later than 18 months;(b) After hearing the parties and making such inquiry as itthinks fit, the court is satisfied that the averments in thepetition are true; and(c) The petition is not withdrawn by either party at any timebefore passing the decree.In other words, if the second motion is not made within theperiod of 18 months, then the court is not bound to pass adecree of divorce by mutual consent. Besides, from thelanguage of the section, as well as the settled law, it is clear thatone of the parties may withdraw their consent at any time beforethe passing of the decree. The most important requirement for agrant of a divorce by mutual consent is free consent of both theparties. In other words, unless there is a complete agreementbetween husband and wife for the dissolution of the marriageand unless the court is completely satisfied, it cannot grant adecree for divorce by mutual consent. Otherwise, in our view,the expression “divorce by mutual consent” would be otiose. 11 FCA / 37 / 202315. In the present fact scenario, the second motion was nevermade by both the parties as is a mandatory requirement of thelaw, and as has been already stated, no court can pass adecree of divorce in the absence of that. The non-withdrawal ofconsent before the expiry of the said eighteen months has nobearing. We are of the view that the eighteen-month period wasspecified only to ensure quick disposal of cases of divorce bymutual consent, and not to specify the time period forwithdrawal of consent, as canvassed by the appellant.”16. In view of such an emphatic decision on the issue, whenadmittedly, Aniket died even before the couple moved the secondmotion under sub-section (2) of section 13-B of the Act, as has beencorrectly observed by the learned Judge in the impugned order, thepetition itself had become infructuous. 17. In our considered view, even Yallawa (supra) would weighagainst the appellants. In that matter, the husband had succeeded inobtaining the divorce decree against the wife ex parte. He thereafterdied and the issue was, as to whether after his demise, the wife can filean application for setting aside ex parte decree under Order IX Rule 13of the Code of Civil Procedure against the legal heirs of the deceasedhusband. After reaching the conclusion, it was observed in paragraphno. 10, as under :-“10. Now remains the question as to whether the proceedingsfor divorce as restored by the High Court by its impugned orderare required to be proceeded further or the curtain must bedropped on the said proceedings. As the ex parte decree isfound to be rightly set aside by the High Court, the marriagepetition would automatically stand restored on the file of thelearned trial Judge at the stage prior to that at which they stoodwhen the proceedings got intercepted by the ex parte decree.Once that happens it becomes obvious that the originalpetitioner seeking decree of divorce against the wife being 12 FCA / 37 / 2023no longer available to pursue the proceedings now, theproceedings will certainly assume the character of apersonal cause of action for the deceased husband andthere being no decree culminating into any crystallizedrights and obligations of either spouse, the saidproceedings would obviously stand abated on the groundthat right to sue would not survive for the other heirs of thedeceased husband to get any decree of divorce against thewife as the marriage tie has already stood dissolved by thedeath of the husband. No action, therefore, survives for thecourt to snap such a non-existing tie, otherwise it would belike trying to slay the slain. At this stage there remains nomarriage to be dissolved by any decree of divorce.Consequently, now that the ex parte decree is set aside, nouseful purpose will be served by directing the trial court toproceed with the Hindu marriage petition by restoring it to its file.The Hindu Marriage Petition No. 25 of 1989 moved by ShriBasappa, the husband of the respondent on the file of the Courtof Civil Judge, Gadag will be treated to have abated and shallstand disposed of as infructuous. The appeal is disposed ofaccordingly. In the facts and circumstances of the case, therewill be no order as to costs.” (emphasis supplied).18. These observations would clearly operate against theappellants and since the right to seek divorce was a personal right ofdeceased Aniket and the principle being actio personalis moritur cumpersona, cause of action would not survive to the appellants and thepetition for divorce by mutual consent would stand abated as has beencorrectly concluded by the learned Judge in the impugned order. 19. So far as the division bench judgment in PrakashKalandari (supra) is concerned, the fact situation was clearly different. A petition for divorce was filed which was initially not a petition fordivorce by mutual consent as contemplated under section 13-B of theAct. The parties had arrived at a compromise before a counsellor interms of rule 31 of the Family Courts (Marriage Rules), 1987, which 13 FCA / 37 / 2023were framed under section 21 of the Family Courts Act, which enabledthe Court to pronounce the decree on the basis of the consent termsreduced into writing and signed by the parties unless it were contrary tothe public policy. It was also noticed that substantial compliances weremade by one of the spouses and the consent was sought to bewithdrawn unilaterally by the other spouse without making out theground that it was obtained by coercion, fraud or undue influence ascontemplated under section 23.20. The issue before us is peculiar. The question ofconsidering withdrawal of the consent by respondent, is not the matter.In fact, admittedly, Aniket died on 15-04-2021 and the respondentsubmitted the purshis Exhibit 8, withdrawing her consent and seekingdisposal of the petition on 28-04-2021. 21. Once having concluded as herein-above that moving ofmotion under sub section (2) of section 13-B of the Act, is a sine quanon for passing of a decree of divorce by mutual consent, when it wasnot made in the present matter, such withdrawal of consent afterdemise of Aniket was redundant since that second motion has to be ajoint motion. The appellants are not entitled to derive any benefit fromthe decision in the matter of Prakash Alumal Kalandari (supra). 14 FCA / 37 / 202322. Once having reached such a conclusion, the appellantsbeing the heirs of deceased - Aniket, his mother and two brothers, theyhave no right to come on record, even they would not get any right toprefer an appeal under section 19 of the Family Courts Act. 23.We find no illegality in the order under challenge.24.The Appeal is dismissed. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/