A party's withdrawal of consent for mutual divorce cannot be deemed contempt if based on re-evaluated decisions.

1. The Appeal under S.19 of the Family Courts Act, 1984 has been preferred by the appellant - husband against the Order dated 30.01.2023 whereby the learned Judge, Family Courts has dismissed the Contempt Petition against the respondent - wife for not having abided by the Memorandum of Understanding (MoU) dated 28.09.2020 whereby the parties had agreed to take divorce by Mutual Consent.

2. The parties got married according to Sikh rites and customs on 19.11.2017 and one daughter was born from their wedlock. However, on account of marital discord, both the parties decided to dissolve their marriage by way of Mutual Consent. They executed an MoU dated 28.09.2020 pursuant to which, the petition for Divorce under S.13(B)(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act, 1955') was preferred. The petition for first motion under S.13(B) of the Act, 1955 was allowed vide Order dated 18.12.2020. However, the respondent - wife did not come forth to file the petition for second motion of divorce and consequently, the appellant - husband preferred the Contempt Petition for initiating the Contempt against the respondent - wife.

3. The ground for initiation of contempt essentially was that the respondent has unilaterally withdrawn her consent for second motion and thus, had defaulted in compliance of the terms of MoU. It was further claimed by the appellant - husband that in fact, she is not willing for Divorce and had filed a petition under S.9 of the Act, 1955 aside from filing a petition under Guardianship and Wards Act seeking custody of the minor daughter.

4. The contempt petition was contested by the respondent - wife who submitted that time was granted to her to reconsider her option for divorce by Mutual Consent after the First Motion was accepted. The cooling off time period between the first motion and the second motion is not merely a formality or a ritual but it is in effect, an opportunity to the parties to reconsider their decision for parting ways. It was also claimed by the respondent that her signatures were obtained on the MoU dated 28.09.2020 by misrepresentation of facts by the counsel for the appellant who had been engaged by him at the time of filing of First Motion and who had prepared the unilateral conditions in MoU. It was further claimed that her consent even at the time of First Motion was not free and fair as the daughter of the respondent aged about 2 years was in her custody since birth and despite the respondent being the mother of the infant daughter, she could not have been deprived of the custody of her daughter without even granting the meeting rights. As soon as she realized the fraud and the misrepresentation, she moved an application for setting aside of the First Motion of divorce. Since according to the respondent, MoU was not out of free consent and will, there cannot be any contempt of Court imputed against her. The learned Judge, Family Courts relied upon the case of Rajat Gupta Vs. Rupali Gupta 2018 SCC OnLine Del. 9005 wherein this Court held that a party cannot be compelled to accord her consent for the Second Motion and it is within the right of either party to withdraw his / her consent. It was further observed that to make a person liable for contempt of Court, it must be shown that the violation of the Undertaking given to the Court is wilful and deliberate. It was concluded that the Statute itself provides for reconsideration of consent at the time of filing of second motion and the respondent had also claimed misrepresentation in obtaining her signatures on the MoU dated 28.09.2020. Thus, the learned Judge, Family Court concluded that there was no wilful breach of any undertaking given to the Court and no contempt was made out against the respond