IMPORTANT POINT
Consent of the parties u/s 13B of Hindu Marriage Act has to be of free will. Court has a duty, u/s 23, to satisfy itself about the free consent.
Wife suffering from cancer, agreeing for settlement and divorce by mutual consent because she needs money for her treatment. Not a free consent.
Husband has a pre-existing duty to take care of health needs of his wife. Exploiting illness to extract a consent cannot be permitted.

Order

M.Y. Eqbal, J.

Heard learned counsel appearing for the parties and perused the records along with the affidavits and petitions.

2. Admittedly, the marriage of the petitioner with the respondent was solemnized in April, 2010 according to Hindu Vedic Rites. At the time of marriage, the respondent-husband was a bachelor and the petitioner-wife was a divorcee. It was a love marriage after both of them came in contact with each other in October, 2006. In 2013, some misunderstanding developed between the petitioner and the respondent as a result of which the petitioner left the house.

3. In 2015, the respondent-husband filed a suit for dissolution of marriage by a decree of divorce under Section 13(1)(1a) of the Hindu Marriage Act on the ground that the petitioner-wife after solemnization of the marriage had committed various acts of cruelty. Admittedly, the petitioner is living in Hyderabad with her parents. The petitioner, therefore, moved an application before this Court for transfer of divorce suit pending before the Family Court Bombay to the Family Court at Hyderabad.

4. The transfer petition was listed before this Court on 28.08.2015, when, at the request of the counsel for the parties, the matter was referred to Supreme Court Mediation Centre for amicable settlement. Before the Mediation Centre, a Settlement Agreement was filed on 26.10.2015. In terms of the said Settlement Agreement, the respondent-husband agreed to pay Rs.12,50,000/-(Twelve Lakhs Fifty Thousand only) towards full and final settlement as alimony, maintenance for past and future or any other claim of the petitioner. The respondent-husband had agreed to pay the said amount of Rs.12,50,000/-(Twelve Lakhs Fifty Thousand only), by way of Bank draft in the name of the Registrar, Supreme Court, which shall be paid to the petitioner-wife at the time of passing of decree of divorce by mutual consent.

5. On 6th November, 2015, the case was again listed along with the office report and Settlement Agreement. The matter was adjourned to enable the parties to file appropriate application.

6. Consequently, an application was filed purported to be under Section 13B of the Hindu Marriage Act with a prayer to treat the divorce petition pending before the Family Court, Bombay as an application under Section 13B of the Act and treat the present application as second motion and grant divorce by way of mutual consent.

7. In the said application it was mentioned that petitioner-wife is suffering life threatening disease and urgently requires funds for her medical treatment and also that she has to depend on herself for proper care.

8. On 17.11.2015, the case was adjourned at the request of the petitioner-wife, to enable her to file additional documents in support of her case that she is suffering with life threatening disease. In compliance thereof additional documents have been brought on record.

9. Perusal of the document i.e. the medical certificate, reveals that a lump in the breast was found which highly suggests malignancy. The doctors recommended for an immediate surgery and chemotherapy ranging from 6 to 8 cycles of adjuvant. It is mentioned that approximate costs per cycle will cost about Rs. 50,000/-.

10. From the above mentioned admitted facts, it is evident that the petitioner needs sufficient amount of money for the treatment of breast cancer. Hence, it cannot be ruled out that in order to save her life by getting money, she agreed for a settlement of dissolution of marriage. On these facts, a question that came in our mind is as to whether the Court would be justified in granting a decree for divorce on the basis of settlement when the wife is suffering with breast cancer and is in need of money for her treatment and can that be the consideration for dissolution of marriage.

11. Hindu marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of b