Apr
19
2016


The instant petition was filed with a plea to set aside order of Principal Judge Family Court deferring disposal of application filed by the Petitioner-Husband for passing decree of divorce in view of the compromise entered into between parties to the marriage.

The Petitioner-Husband had filed divorce petition against the Respondent-Wife. It was alleged that in retaliation to this petition, Wife initiated several criminal proceedings like dowry demand, maintenance, causing hurt etc. against the husband and his family members and also under Section 9 of the Hindu Marriage Act against the husband. Petitioner moved an application before High Court for quashing of criminal proceedings and the High Court referred the dispute to Mediation, where disputes amongst the parties were settled.

As per the settlement, the Husband had to give permanent alimony to the wife and to permit her to take ornaments from bank locker. After compliance of this condition, wife agreed to withdraw all the complaints and suit filed by her. Divorce petition had to be decreed.

When the case was listed before the Court, the Petitioner took time for payment of alimony amount and next date was fixed. On the next date when matter came up, Petitioner gave two bank drafts favouring Respondent in the Court. Case was then adjourned for filing of written compromise between the Parties. They filed joint affidavit in the shape of compromise, incorporating therein all the agreed terms. The quashing plea of husband was allowed and all criminal proceedings were accordingly directed to be quashed. Thereafter Husband moved an application before the Family Court for decreeing the divorce petition, which was opposed by the wife on the ground that she has moved an application for recalling of order recording compromise. The recall application was dismissed. Subsequently, husband moved another application for decreeing the divorce petition. Disposal of this application was deferred on the premise that divorce on compromise can only be granted according to provisions of Section 13-B and not in proceeding under Section 13 of the Hindu Marriage Act. Appeal preferred against this order came to be dismissed on the ground that this was an interlocutory order against which no appeal lies.

It was contended by the Petitioner that Section 9 of the Family Courts Act, 1984 castes a statutory duty upon Family Courts to persuade the parties to settle their dispute in respect of the subject-matter of the suit. By virtue of Section 10 of the Act, 1984, entire provisions of Code of Civil Procedure, 1908 (CPC) have been applied to the proceeding before Family Court and therefore provisions of Order 23 Rule 3, CPC would be applicable in the proceeding before Family Court. The Petitioner further submitted that suit for divorce under Section 13 of the Act, 1955 is not an exception to the application to Section 9 and 10 of the Act, 1984 and the compromise operates as estoppel against the parties to it.

The Court observed that aim and object of enactment of Family Court Act, 1984 was to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.

If a petition is filed under the provisions of Hindu Marriage Act, 1955, then Family Court will exercise jurisdiction under that Act only. So far as application of Civil Procedure Code, 1908 is concerned, procedure provided under it has to be followed for exercising jurisdiction Hindu Marriage Act, 1955. In case of contradiction, provisions of Hindu Marriage Act, 1955 would have overriding effect.

For trial of suit for divorce under Section 13 of Hindu Marriage Act, 1955, Family Court has to follow the procedure of C.P.C. but decree of divorce can be granted only on the grounds enumerated under Section 13 of the Act. Hindu Marriage Act, 1955 provides two modes for divorce namely (i) on the grounds mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six they again attorn their consent before the Court.

It is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.

In the present case, no petition under Section 13-B of the Act was filed. The Petitioner sought for a decree in divorce suit under Section 13 of the Act, in view of compromise, which would operate as estoppel against the Respondent. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. Parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.

The petition was accordingly dismissed.

[Ashish Kumar Srivastava vs. Smt. Ankita Srivastava]

Allahabad HC, 08.04.2016








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