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After signing an agreement to file for divorce by mutual consent, will either of the spouses face contempt proceedings if they have second thoughts? That is the question the Delhi High Court asked recently while referring a batch of eight separate divorce petitions to a larger bench. Given the “contradictory views” taken in earlier rulings, Justice Manmohan expressed “serious doubts” on the practice of the courts hauling up spouses for contempt if they reneged from their earlier stand of divorce by mutual consent during the six-month “cooling off” period.
What does the law say?
Section 13B of the Hindu Marriage Act allows for ‘divorce by mutual consent’ in a two step process. The first motion of divorce can be filed by the couple if they have not been living together for at least a year. Following this, the law mandates a “waiting/cooling off period” of 6-18 months. At the end of this, the couple can either withdraw consent, and attempt to continue their married life, or file the second motion for divorce, after which the separation is finalised. Even in case of a “contested divorce” — where there is a criminal complaint filed by either of the spouses or one of them has come to the court for a divorce proceeding against the other’s wish — the couple gets a waiting period to resolve their differences. During this period of mediation, if the couple agree to the terms of mutual separation, they file a plea for divorce by mutual consent.
What is the contention?
Now say, a couple have filed a divorce petition under Section 13B(1) (divorce by mutual consent) or a motion under Section 13B(2) of the Act, 1955, or both, but then one of them decides to change their mind in “view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13B(2) of the Act”. Should they be held liable for contempt? The question was raised before the single Bench of the Delhi HC recently. The Supreme Court, and benches of the Delhi and Mumbai HCs have earlier given differing judgments on the “finality” of the agreement in a divorce mediation.
In one kind of cases, a husband has “changed his mind” after the wife took back an FIR against his family for cruelty under the terms of the agreement reached during mediation.
In another case, the wife had refused to file the second motion for divorce through mutual consent after receiving part payment of the alimony amount, because she had “changed her mind” about the terms of custody for the child. In both cases, the HCs had said that the “erring spouse” cannot be allowed to “take advantage” of the option allowed in cases of divorce by mutual consent. During arguments, the other question raised before Justice Manmohan was that when a party had signed an undertaking before a court of law to file the second motion, could they then face contempt for “breach of undertaking given to a court of law”?
One of the petitioners before Justice Manmohan also cited a Supreme Court judgment on the “waiver of right”. The petitioner argued that when two parties agree on a settlement under the Alternate Dispute Redressal mechanism of mediation, they can “waive the statutory right” to “change their mind” that is given under Section 13B of the Hindu Marriage Act, and will be “bound” by the settlement they have agreed on.
Citing several “contradicting judgments”, Justice Manmohan said that since the Supreme Court has held that “consent” for divorce must “continue till the date of the decree”, the right of the parties to change their minds cannot be taken away. However, there are precedent judgments that say that the parties can’t be allowed to benefit from the agreement in the form of quashed FIRs or alimony payments, and then go back on it. Because of “contrary parameters” of the judgments, the matter will now go before a two-judge Bench; a special three-judge Bench may also be constituted.