Judicial Analysis Court Copy Headnote Facts Arguments Court observation

HIMACHAL PRADESH HIGH COURT
Satyen Vaidya, J.
Gurditta Ram Chauhan – Petitioner
versus
Babita – Respondent
COPC No.102 of 2023
Decided on 1.6.2023

Advocates:
Counsel for the Parties:
For the Petitioner:Mr. Vijay Chaudhary, Advocate
For the Respondent: None

IMPORTANT POINT
Divorce by Mutual Consent – Direction by Court to parties to abide by terms of settlement cannot not be assigned a meaning in derogation of statutory right available to party to marriage to withdraw petition under Section 13-B of Act – Right to withdraw consent for mutual divorce being absolute and indefeasible right.

Headnote:
(A) Hindu Marriage Act, 1955 – Section 13-B – Contempt of Courts, Act, 1971 – Section 2(b) –Divorce by mutual consent – Withdrawal of consent – Contempt of court – Under section 13-B of Act both parties to marriage together have been given right to apply for dissolution of marriage by decree of divorce on grounds that they have been living separately for period of one year or more and they have not been able to live together and have mutually agreed for dissolution of marriage – Once petition by both parties is presented, on motion of both parties moved not earlier than six months, Court, on being satisfied that averments in petition are true pass decree of divorce declaring marriage to be resolved with effect from date of decree – This provision simultaneously grants right to parties to withdraw petition before statutorily required cooling off period - This right is inherently available to parties jointly or even singly – It cannot be said that respondent had no right to withdraw her consent earlier given by her before Mediator for filing petition under Section 13-B of Act – Reason for such withdrawal may not be relevant for adjudication of issue – After resiling from consent, respondent may not be legally entitled to retain benefits derived in lieu of such consent, still, to prosecute and punish her under provision of Contempt of Courts, will not be appropriate course to be adopted. [Paras 8, 9]
(B) Hindu Marriage Act, 1955 – Section 13-B – Contempt of Courts, Act, 1971 – Section 12 - Divorce by mutual consent – Withdrawal of consent – Contempt of court - Statement made by respondent before Mediator can at best be said to be assurance on her behalf – It cannot be construed to be undertaking and not at least undertaking before Court so as to attract mischief of contempt of court –Right of respondent to withdraw her consent for mutual divorce being her absolute and indefeasible right – Money deposited by petitioner in account of respondent was voluntary act – There was nothing in negotiated settlement between parties that deposit of half of agreed amount would be paid in advance, rather mediation report reveals that such amount was to be paid by petitioner to respondent at time of filing of petition under section 13-B of Act – It was petitioner who could not take steps for filing petition under section 13-B of Act within reasonable time of deposit of amount in account of respondent – Not case of petitioner that respondent had insisted upon petitioner to deposit amount in her account as pre-condition – Petitioner has also not made any averment to effect that respondent has refused to return amount or that she has resiled from her promise for any malafide reasons – Petitioner cannot maintain petition under Section 12 of Contempt of Courts Act against respondent. [Paras 11, 15]
Result: Petition dismissed.

JUDGMENT

Satyen Vaidya, J.—Heard.

2. Petitioner was appellant before this Court in FAO(FC) No. 04 of 2022.He had assailed judgment dated 01.01.2022, passed by learned Principal Judge, Family Court, Chamba, District Chamba, H.P. in case No. 77/2019 by filing an appeal under Section 19 of the Family Courts Act, 1984. Petitioner was aggrieved against the order of maintenance passed against him by learned Principal Judge, Family Court, Chamba, District Chamba H.P.

3. During the pendency of FAO No. 04 of 2022 and at the request of learned counsel for the parties a Division Bench of this Court appointed Sh. S. S. Sandhu, Advocate, District Court Chamba, District Chamba, H.P. as Mediator. He was requested to make an endeavor for an amicable resolution to the dispute. The Mediator, vide his report dated 14.05.2022 reported the mediation as successful. As per such report, the parties had arrived at an amicable settlement. Respondent herein had agreed to get her marriage with petitioner dissolved by filing petition under Section 13-B of the Hindu Marriage Act, 1955 (for short “The Act”) and had also agreed to receive Rs. 15, 00,000/- towards permanent alimony. Accordingly on 23.05.2022, FAO No. 04/2022 came to be disposed of by the Division Bench in following terms:—

“Learned counsel for the appellant has submitted that parties have amicably settled their dispute before the Mediator. Learned counsel has placed on record mediation report and statements of the parties recorded before the Mediator, which are taken on record and marked as Annexures C-1, C-2 and C-3, respectively.

2. Learned counsel for the respondents has admitted the factum of compromise between the parties.

3. Learned counsel for the appellant has further submitted that in view of the compromise effected between the parties, he may be permitted to withdraw the appeal.

4. Ordered accordingly. Parties will remain bound by the terms of the compromise.”

4. By way of instant petition, petitioner has made a prayer to prosecute and punish the respondent under Contempt of Courts Act, for deliberately and willfully violating the undertaking given by her on 14.05.2022 before the Mediator. It is alleged that in pursuance to successful culmination of mediation proceedings, petitioner deposited a sum of Rs. 8,00,000/- in the account of respondent on 26.10.2022. He could not thereafter immediately come forward for taking steps to file a petition under Section 13-B of the Act, as he was in remote area of Tehsil Pangi, District Chamba, H.P., which remained out of bounds due to winters and when in April 2022, respondent was approached to fulfill her commitment under negotiated mediation, she refused to sign the petition for being filed before the Court.

5. Keeping in view the facts of the case, learned counsel for the petitioner was heard on the maintainability of the petition. He contended that respondent was in contempt of the orders passed by a Division Bench of this Court, whereby parties were directed to abide by the terms of settlement arrived at between the parties before learned Mediator. It was further submitted that the mediation was continuation of the legal process and violation of an undertaking given before the Mediator amounted to undertaking given before the Court. Strong reliance was placed on a judgment passed by a Division Bench of High Court of Delhi, dated 15.05.2018 in reference in Contempt Case (C) 772 of 2013 alongwith other connected matters.

6. Admittedly, parties in FAO No. 04.2022 were referred to mediation by a Division Bench of this Court. During mediation proceedings, learned Mediator recorded a statement of respondent to the effect that she would file a petition under Section 13-B of the Hindu Marriage Act and also accept Rs. 15,00,000/- towards permanent alimony. FAO No. 04 of2022 was accordingly disposed of and parties were directed to remain bound by the terms of the compromise.

7. Section 13-B of the Hindu Marriage Act, 1955, reads as under:—

“13-

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