No Spouse Can Be Penalized For Exercising His Statutory Right To Reconsider His Consent For Obtaining Decree Of Dissolution Of Marriage: Delhi HC

Hence, an exercise of his rights can in no manner be categorized as willful disobedience, added the Court.

A Single Judge Bench of Justice Chandra Dhari Singh observed that “There is nothing in the provision which penalizes the respondent for not furnishing his consent for motion or for not applying for a waiver of the statutory period. The stance that the respondent may not be compelled by any Court to furnish his consent for moving Second Motion for divorce certainly does not grant an extraneous benefit to the petitioner to coerce or force the respondent to furnish such no-objection. The respondent has taken the ground of welfare and interest of the minor children of the parties for not consenting to move the Second Motion for divorce, which is a genuine and sincere consideration to be borne in mind while deciding regarding dissolution of marriage”.

Advocate Satakshi Sood appeared for the Petitioner, whereas Advocate Prabhjit Jauhar appeared for the Respondent.

The brief facts of the case were that the marriage between the parties was solemnized and out of the wedlock two children were born. However, subsequently the parties started to live separately since 7th October 2020 due to temperamental issues between them, and they get separated. Several litigations were initiated regarding guardianship, complaint case under the Protection of Women from Domestic Violence Act, 2005, petition under the Hindu Marriage Act, 1955 etc. In the Guardianship Petition, the respondent had filed an application under Section 12 of the Guardian and Wards Act, 1890 seeking an interim arrangement regarding the custody and visitation rights of the children, which was allowed by the Family Court. When this order was challenged, the Delhi High Court suggested the parties to explore the possibility of an amicable settlement. After the Settlement Agreement, the parties mutually decided to withdraw all pending litigations against each other and to file for divorce by mutual consent under the Hindu Marriage Act, 1955. In pursuance of the Settlement, the parties withdrew their pending litigations and also filed for divorce by mutual consent and moved the First Motion before the Patiala House Courts, New Delhi, which was allowed. However, thereafter, the Second Motion petition has not been moved before the appropriate Court and the petitioner is aggrieved by the alleged inaction on behalf of the respondent, and filed contempt case.

After considering the submission, the Bench noted that it is not the case of the petitioner that the respondent has committed contempt of Court during a hearing before any Court or in its presence.

The entire case of the petitioner is built on the Settlement Agreement entered into between the parties followed by the order of the Division Bench. Hence, the case of the petitioner does not fall within the scope of Section 14 of the Contempt Act, added the Bench.

The Bench then highlighted that ‘Civil Contempt’ within the meaning of Section 2 (b) of the Contempt Act means willful disobedience to any judgment, decree, direction, order, writ, or other processes of a court or willful breach of an undertaking given to a court, and hence in order to attract the provisions of the contempt Act, the onus is on the prosecution to prove that the respondent willful disobedient the said agreement.

The Bench also stated that the very foundation of Section 13B of the Hindu Marriage Act, 1955 is based upon the key element of ‘consent’ which may neither be compelled to be waived nor be compelled to be observed.

“The provision for the statutory period from six months to eighteen months has been provided for in the Act of 1955, not only to facilitate the parties to make a considered, well-thought and well-deliberated, calculated and planned decision regarding dissolving their marriage but also for the Court to examine and adjudge the veracity and genuinity of the consent furnished before the Court”, added the Bench.

After considering the core objective of provisions under the Hindu Marriage Act, 1955 as well as the Contempt of Courts Act, 1971, the Bench stated that merely not providing consent for moving the Second Motion petition in itself will not amount to contempt of the court’s order or direction, since the action/inaction on the part of the respondent cannot be considered to fall under the willful ‘disobedience’ which is an indispensable requirement for making out a case for civil contempt.

The Bench therefore concluded by observing that the petitioner has the statutory right to reconsider his decision and consent for obtaining a decree of dissolution of marriage during the intervening period.

Cause Title: Vineeta Daulet Singh v. Bikkrama Daulet Singh [Neutral Citation: 2023: DHC: 6192]

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