1. Transfer petition under Section 25 CPC regarding a divorce petition filed under Section 13(1)(ia) of the Hindu Marriage Act, 1955. (Para 1 , 2 )
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1997 Supreme(SC) 1250
1997(8) Supreme 362
SUPREME COURT OF INDIA
Dr. A.S. Anand & K. Venkataswami, JJ.
Smt. Shashi Garg -Petitioner
versus
Arun Garg -Respondent
Transfer Petition (C) No. 687 of 1996
Decided on 18.9.1997
Counsel for the Parties :
For the Petitioner : Ms. Arun Mathur, A. Mariarputham, Mrs. Urmila Narang, Advocates with for M/s. Arputham, Aruna & Company, Advocates.
For the Respondent : Sushil Kumar Jain, Advocate.
Important Points
The Supreme Court may convert a contested divorce proceeding into a divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, if the parties enter into a settlement agreement and the statutory requirements for mutual consent are satisfied.
Subject
Family Law - Divorce
Act Referred
Headnote
Hindu Marriage Act, 1995-Section 13-B-Petition for dissolution of marriage filed by husband under Section 13(1) (ia) before District Judge Delhi-Transfer petition by wife-Parties disiring to settle dispute by filing memorandum of agreement-Pleadings of parties showing that parties had reached a point of no return-No purpose of persuading them to live togather-Requirements of Section 13-B of the Act stood satisfied-Interest of minor daughter safeguarded-Decree for divorce by mutual consent in terms of agreement awarded. (Paras 5 to 8)
Legal Category Hierarchy
Table of Contents
2. Parties sought to settle the dispute outside court and requested dissolution of marriage by mutual consent. (Para 5 , 6 )
3. The court found the marriage emotionally and practically dead, the parties reached a point of no return, and the minor child's interests were protected. (Para 6 )
4. A court may alter the relief in a divorce petition to grant a decree by mutual consent under Section 13-B of the Hindu Marriage Act. (Para 7 )
5. Decree for divorce by mutual consent granted; transfer petition and original HMA case disposed of; maintenance petition under Section 125 Cr.P.C. to be withdrawn. (Para 8 )
6. Can a court convert a contested divorce petition into a mutual consent divorce?
Yes, if the requirements of Section 13-B of the Hindu Marriage Act are satisfied, the court may alter the relief to grant a decree for divorce by mutual consent to do complete justice and avoid further litigation. (Para 7 )
7. What is the court's approach when parties in a matrimonial dispute reach a point of no return?
When the court is satisfied that the marriage is emotionally and practically dead and the parties have reached a point of no return, there is no purpose in persuading them to live together. (Para 6 )
8. Can a settlement agreement allow for the marriage of a minor child upon attaining majority or marriage, whichever is earlier?
While an agreement may specify such terms, the court clarifies that the marriage cannot be legally performed before the minor child reaches the statutorily fixed marriageable age. (Para 7 )
ORDER
K. Venkataswami, J.-H.M.A. Case No. 221/96 pending before District Judge, Delhi is transferred to the file of this Court.
2. This Transfer Petition was filed under Section 25 of the Code of Civil Procedure with a prayer to order transfer of H.M.A. Case No. 221/96 pending before the District Judge, Delhi between the parties to the court of competent jurisdiction at Rewari, Haryana. The respondent-husband has filed the said H.M.A. Case No. 221/96 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter called the Act) for the dissolution of the Marriage between the parties. This Petition was filed some time in February, 1996 by the respondent-husband.
3. Notice was ordered in the Transfer Petition and the respondent has entered appearance through his counsel.
4. We are not giving the details of the dispute between the parties in view of the subsequent events pending this Transfer Petition.
5. When this Transfer Petition came up for hearing, the parties desired to settle the dispute outside the Court and to file a memorandum of agreement in this Court. Accordingly, an agreement signed by the parties has been filed which is at page 59 of the paper book. The parties were also present on 15.9.97 when the matter was heard. As the parties desired to settle the dispute by filing the memorandum of agreement in this Court, it has become necessary to transfer the H.M.A. Case No. 221/96 pending on the file of the District Judge, Delhi to this Court and dispose of the same in the light of the agreement filed by the parties.
6. We have gone through the terms of the agreement. We have also noted that one minor daughter, by name Arushi Garg, born out of the wedlock is there and her interest has been protected in the terms of the agreement. After going through the pleadings filed both before the District Judge, Delhi and here, we are satisfied that the parties have reached to a point of no return. Therefore, there is no purpose of persuading them to live together under matrimonial roof.
In Clause 2 of the agreement, the parties have stated as follows :-
"2. That party No. 1 and 2 jointly pray before this Hon ble Court that their marriage be dissolved which is dead emotionally and practically between the parties by mutual consent under the directions of this Hon ble Court."
7. The requirements of Section 13-B of the Act have been satisfied and there is no impediment in granting the decree for divorce by mutual consent by altering the relief in H.M.A. Case No. 221/96, as one available under Section 13-B of the Act with a view to do complete justice between the parties and avoid unnecessary further litigation. We are also satisfied that the interest of the minor daughter has been safeguarded. Though clause 6(2) of the agreement enables the withdrawal of Rs.1,00,000/- at the time of the minor daughter attaining majority or at the time of her marriage, whichever is earlier, we make it clear that the marriage cannot be legally performed before the minor daughter reaches the statutorily fixed marriageable age.
8. Accordingly, there will be a decree for divorce by mutual consent in terms of the agreement entered into between the parties on 11th Day of September, 1997. The petitioner shall withdraw the petition filed by her under Section 125 Cr.P.C. before the Judicial Magistrate, Rewari. The parties will strictly comply with/adhere to the terms of the compromise deed which is taken on record and which shall form part of the decree. Transfer Petition and H.M.A. Case No. 221/96 transferred to this Court are disposed of. No costs.
Transfer petition and HMA Case disposed of.
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