- Section 13-B of the Hindu Marriage Act, 1955 (‘HMA’) states as under:
“13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”
2. Section 13-B of HMA contemplates two stages. The first stage is of Section 13-B(1) that lays down the essential requirements to be fulfilled by the parties as detailed below:
(i) The petition for divorce must be presented to the District Court;
(ii) The said petition must be presented jointly, by both the parties to a marriage whether such a marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976;
(iii) The parties have been living separately for a period of one year;
(iv) The parties have not been able to live together; and
(v) The parties mutually agreed that the marriage should be dissolved.
3. The second stage is of Section 13-B(2) that relates to the manner in which the court exercises its jurisdiction, provides that both the parties must again appear in the Second Motion before the court. The parties are also required to make a joint motion not less than six months after the date of presentation of the First Motion and not later than 18 months after the said date. The period of waiting ranging from six to eighteen months is intended to give an opportunity to the parties to reflect/renege and if one of the parties does not wish to proceed ahead with the divorce during this period, then divorce cannot be granted. The said principle has been explained by the Supreme Court in Sureshta Devi v. Om Prakash, as under:
“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”
The aforesaid view has been reiterated by the Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar.
Thus, the object of the cooling-off period is to safeguard both the parties against a hurried decision if there is otherwise a possibility of their differences being reconciled.
4. Now, the issue arises whether this cooling-off period can be waived in law by either of the parties or not. In Krishna Bahadur v. Purna Theatre, the Supreme Court inter alia held that a right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein, discussing the principles of waiver as follows:
“10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.”
5. In Shri Lachoo Mal v. Radhey Shyam, the Supreme Court has explained that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.
6. The aforesaid principle of waiver has also been elucidated in Union of India v. Pramod Gupta, wherein the Supreme Court has observed as:
“111. It is, therefore, not correct to contend that there cannot be any waiver of the right to claim interest. Statutory provisions are made for payment of interest with a view to compensate a party which had suffered damages owing to a positive action or inaction of the other resulting in blockade of money which he would otherwise have received. A party which itself represents before the court of law that it would not claim interest with a view to obtain an order of stay which would be for its own benefit, in our opinion, could not be permitted to take advantage of its own wrong.”
7. In view of the above, it may be concluded that waiver is ordinarily contractual in nature inasmuch as two parties can enter into a contract in their private capacity and agree that one of them being well aware of its rights, will not assert the said right, for a consideration. However, where the statute prohibits contracting out, then the parties cannot enter into such a contract as it would be opposed to public policy.
8. The Kerala High Court in V. Janardhanan v. N.P. Syamala Kumari , observed that an agreement to dissolve a marriage in derogation of the provisions of the 1955 Act is violative of the public policy of India.
9. The aforementioned cooling-off period cannot be waived off by the parties, as it gives an opportunity to both to reconsider reconciliation. The Supreme Court in Anil Kumar Jain v. Maya Jain, has also held that the period of six months between filing a petition of divorce by mutual consent under Section 13-B(1) and grant of decree of divorce under Section 13-B(2) of the 1955 Act cannot be waived off by the parties or by any civil court or High Court.
10. However, in Amardeep Singh v. Harveen Kaur, the abovementioned cooling-off period of six months has been held to be directory and not mandatory. The Supreme Court also interpreted Section 13-B(2) to be procedural in nature and highlighted that where the marriage has irretrievably broken down, the waiting period can be waived off by the court to enable the parties to rehabilitate themselves and start their lives afresh. It is the underlying object of the said provision that has prevailed on the Supreme Court to hold that where a court is satisfied that a case for waiver of the statutory “cooling period” under Section 13-B(2) of the Act is made out, it may waive the said period in certain circumstances. The above view has been expressed as follows:
“17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.
In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision.
Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:
i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the First Motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXII-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.
The waiver application can be filed one week after the First Motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the Second Motion will be in the discretion of the Court concerned.
- Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”
Therefore, in Amardeep Singh, the Supreme Court acknowledged the change in public policy by permitting waiver of the statutory period of six months, contemplated in Section 13-B of the Act, with the object of preventing a forcible perpetuation of the status of matrimony between unwilling partners. Thus, the cooling-off period of six months has an element of public policy inbuilt therein, for emphasising the sanctity and importance of sustenance of marriage, as opposed to its dissolution.
11. It is noted that a situation may also arise where despite the undertaking(s) given by the couple or either of them before the court of law in obtaining the settlement, one of the partners unilaterally withdraws the consent earlier given to the petition to be filed under Section 13-B of the Act. As already noted hereinabove, the said party may have a right to renege, more so during the cooling-off period meant for the said purpose, however, whether such a withdrawal of consent contrary to the undertaking given shall make the defaulting party liable for contempt under the relevant law, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13-B(2) of the Act?
12. In this regard, it is pertinent to reproduce the relevant provisions of the Contempt of Courts Act, 1971:
“2. Definitions.— In this Act, unless the context otherwise requires, –
a) “contempt of court” means civil contempt or criminal contempt;
b) “civil contempt” means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;..
* * *
- Power of High Court to punish contempt of subordinate courts.— Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.
* * *
- Punishment for contempt of court.— Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
- Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
- Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
- Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:
Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
4. Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.
- Contempts not punishable in certain cases.—
Notwithstanding anything contained in any law for the time being in force:
a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;
b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoicing the said defence is bona fide.”
13. In Sudhakar Prasad v. Govt. of A.P., the Supreme Court declared that the powers of contempt are inherent in nature and the provisions of the Constitution only recognise the said pre-existing situation. The relevant observations are reproduced below:
“9. Articles 129 and 215 of the Constitution of India declare Supreme Court and every High Court to be a Court of Record having all the powers of such a court including the power to punish for contempt of itself. These articles do not confer any new jurisdiction or status on the Supreme Court and the High Courts. They merely recognise a pre-existing situation that the Supreme Court and the High Courts are courts of record and by virtue of being courts of record have inherent jurisdiction to punish for contempt of themselves. Such inherent power to punish for contempt is summary. It is not governed or limited by any rules of procedure excepting the principles of natural justice. The jurisdiction contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or whittled down by any legislative enactment subordinate to the Constitution. The provisions of the Contempt of Courts Act, 1971 are in addition to and not in derogation of Articles 129 and 215 of the Constitution. The provisions of the Contempt of Courts Act, 1971 cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the said two articles.
10…..This Court held that courts of record enjoy power to punish for contempt as a part of their inherent jurisdiction; the existence and availability of such power being essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice (para 12). No Act of Parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt and Parliamen’ts power of legislation on the subject cannot be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts though such a legislation may serve as a guide for their determination of the nature of punishment which a Court of Record may impose in the case of established contempt. Power to investigate and punish for contempt of itself vesting in Supreme Court flows from Articles 129 and 142(2) of the Constitution independent of Section 15 of the Contempt of Courts Act, 1971 (para 21). Section 12 of the Contempt of Courts Act, 1971 provides for the punishment which shall ordinarily be imposed by the High Court in the case of an established contempt. This section does not deal with the powers of the Supreme Court to try or punish a contemnor in committing contempt of the Supreme Court or the courts subordinate to it (paras 28, 29, 37). Though the inherent power of the High Court under Article 215 has not been impinged upon by the provisions of the Contempt of Courts Act, the Act does provide for the nature and types of punishments which the High Court may award. The High Court cannot create or assume power to inflict a new type of punishment other than the one recognised and accepted by Section 12 of the Contempt of Courts Act, 1971.”
Similar observation has also been made by the Supreme Court in Supreme Court Bar Association v. Union of India .
4. The principle of civil contempt has been dealt with in Ashok Paper Kamgar Union v. Dharam Godha, wherein the Supreme Court observed as under:
“17. Section 2(b) of Contempt of Courts Act defines ‘civil contempt’ and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of undertaking given to a Court. ‘Wilful’ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case……”
5. In Balasubramaniyam v. P. Janakaraju, the High Court of Karnataka has explained the principle of contempt as follows:
“19. Orders of Courts have to be obeyed unless and until they are set aside in appeal/revision. Alternatively in any proceedings for execution or in a collateral proceedings where an order is sought to be enforced or relied on, it is possible for a party to establish that the order is null and void. Then the Court considering the matter, if satisfied, will hold that the order is null and void and therefore not executable or enforceable. In this case, the order of eviction dated 6-8-1996 has been confirmed by the Revisional Court by order dated 18-11-1996 which in turn has been confirmed by order dated 18-12-1996 of this Court. These orders are not set aside. They have not been declared or held to be null and void in any proceedings. Therefore, the respondents cannot assume for themselves that the undertaking given by them is not valid or that therefore they need not comply with it.
- The principles relating to contempt are clear. The definition ‘Civil Contempt’ includes wilful breach of an undertaking given to a Court. Public interest requires that solemn undertakings given to a Court with the intention of obtaining any benefit should not be breached wilfully. No litigant can be allowed to wriggle away from a solemn undertaking given to the Court, as it will open dangerous trends and defeat the very purpose of giving undertakings to Court. While Courts will not be vindictive, Courts cannot also allow themselves to be trifled with by violating the solemn undertakings given to them. Litigants ought to understand that once they give an undertaking to a Court, they should comply with it in all circumstances, the only exceptions being fraud or statutory bar. They cannot break an undertaking with impunity and then attempt to justify it. The breach of solemn undertaking given to a Court is a serious matter and will have to be dealt with seriously. Further, while execution ofa decree is a matter between the decree-holder and the judgment- debtor, an undertaking to a Court is a matter between the Court and the person who gives the undertaking to the Court. The right of a landlord to get his tenant vacated in terms of an order of eviction has nothing to do with the solemn undertaking given by a tenant to the Court to vacate the premises to obtain the benefit of grant of time for vacating the premises. It therefore follows that even if the order of eviction becomes inececutable for any reason, that will not absolve the person giving the undertaking to Court, from acting in terms of it.”
16. Similar principles regarding contempt have been reiterated and reemphasised in several pronouncements, including in Rama Narang v. Ramesh Narang , and Shailesh Dhairyawan v. Mohan Balkrishna Lulla.
17. In Shikha Bhatia v. Gaurav Bhatia, during the pendency of the petition for anticipatory bail in a FIR registered against him and his parents, the respondent husband entered into an agreement with the petitioner wife to pay a quantified amount to her in full and final satisfaction of all her claims and in consideration thereof, the wife agreed to sign the First Motion for grant of divorce by mutual consent and then the petition under Section 13-B(2) of the Act. The wife also agreed not to object to quashing of the FIR. On refusal of the husband to abide by the undertaking given to the wife over making the payments, she initiated contempt proceedings. The Delhi High Court observed that the husband having taken advantage of the agreement entered into with the wife in terms of the settlement, he could not withdraw the same to her detriment. It was thus held that the husband had wilfully and deliberately disregarded the settlement recorded in court on his own representation and accordingly declared him guilty of contempt.
18. In Avneesh Sood v. Tithi Sood, disputes had arisen between the parties after a decade of their marriage and they had executed a Memorandum of Understanding (MoU) agreeing inter alia to seek divorce by mutual consent. As per the terms thereof, the husband had agreed to pay a quantified amount to the wife, in instalments. After execution of the MoU, the parties filed a joint petition for dissolution of marriage by mutual consent under Section 13-B(1) of the Act and incorporated therein the terms and conditions of settlement, which were duly accepted by the court during the First Motion proceedings. Later on, when the wife refused to cooperate with the husband for moving the Second Motion petition under Section 13-B(2) of the Act, he filed a contempt petition against the wife on the ground that she had withdrawn from the undertaking given by her to the court at the time of filing the petition for mutual divorce under Section 13-B(1) of the Act before the Family Court. The Court held the wife guilty of contempt of court for having breached the undertaking given to the learned ADJ in the First Motion divorce proceedings under Section 13-B(1) of the Act and issued a notice to show cause as to why she should not be punished for contempt of court, particularly when she had derived benefits from the husband in terms of the MoU.
19. In view of the above, it thus follows that the Supreme Court and the High Courts, by virtue of being courts of record, have the inherent jurisdiction to punish for contempt of court. Further, Section 2(b) of the 1971 Act encompasses wilful disobedience to any judgment, decree, direction, order etc. of a court, as well as a wilful breach of an undertaking given to the court. Therefore, even though a party who has given an undertaking to the Court withdraws the same exercising the legal right under Section 13-B of the Act, the said party has nonetheless knowingly by his/her undertaking to the Court wilfully breached the same, thus making the said party guilty of civil contempt of court under the 1971 Act.
10. The Division Bench of the Delhi High Court in Rajat Gupta Rupali Gupta answered the following two questions, besides others, referred to it in the following terms:
Q. 1: Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13-B(1) or a motion under Section 13-B(2) of the 1955 Act or both and has also undertaken to appear before the said Court for obtaining divorce can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13-B(2) of the Act?
Ans.: The distinguishing feature of Section 13-B of the 1955 Act is that it recognises the unqualified and unfettered right of a party to unilaterally withdraw the consent or reconsider/renege from a decision to apply for divorce by mutual consent, notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree, to cooperate with the other spouse to file a petition under Section 13-B(1) or a Second Motion under Section 13-B(2) of the Act, or both. Withdrawal of the consent even at the stage of the enquiry, as contemplated under Section 13-B(2), is also in exercise of the right available to a party under the very same provision. Any other view will not only impinge on the jurisdiction of the court which has an obligation under the statute to undertake an independent enquiry before passing a decree of divorce by mutual consent, it will also encroach upon a statutory right vested in a party under Section 13-B(2) of the Act and go against the very spirit of the provision. However, at the same time, a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree. In the event the aggrieved party approaches the court for initiation of contempt proceedings against the defaulting party for wilful/deliberate breach of any of the terms and conditions of an undertaking/settlement agreement/consent order or a decree and takes a plea that as a consequence thereof, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice, the court in exercise of its inherent powers of contempt, supplemented by the 1971 Act has the requisite jurisdiction to entertain the petition and direct restoration of status quo ante in every possible way. Thus, contempt jurisdiction operates in a different field and is uninfluenced by the fetters imposed on a court under the Act of 1955. The only rider to the above is that no direction can be issued even in contempt proceedings to compel the defaulting party to give its consent for a decree of divorce by mutual consent, as it is opposed to the object, policy and intent of Section 13-B of HMA.
Q. 2: Whether by undertaking before a Court to file a Second Motion under Section 13-B(2) of the Act, 1955 at Section 13-B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under Section 13-B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13-B(2) of the Act, 1955?
Ans.: Notwithstanding any undertaking given by a party before a court to file a Second Motion under Section13-B(2) or at the Section 13-B(1) stage or in any separate court proceedings, its right to rethink/renege under Section 13-B(2) of the Act, cannot be waived for the reason that such a waiver is proscribed by the statute that keeps a window open for the parties to withdraw their consent at any stage till the decree of divorce is finally granted. The right of withdrawal of consent in the above proceedings can be exercised at any stage and exercise of such a discretion cannot be treated as being opposed to public policy. Any other interpretation given to the aforesaid provision would negate the underlying aim, object and intent of the said provision. Once a party decides to have a second thought and on reflection, backs off, the court concerned cannot compel the defaulting party to give its consent on the basis of an earlier settlement/undertaking.
* Advocate and a qualified Chartered Accountant. Author is currently a Senior Associate in the Dispute Resolution Practice at L&L Partners Law Offices, New Delhi. Author’s views are personal.
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