- A) Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 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 13B(2) of the Act?
- B) Whether by undertaking before a Court to file a second motion under Section 13B(2) of the Act, 1955 at Section 13B(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 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13B(2) of the Act, 1955?
- C) Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both for obtaining divorce?
- D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia (supra) are good law in view of the doubts expressed by this Court in paras 19 to 28 and in view of the Division Bench judgment in Dinesh Gulati (supra).‖
wherein the following four questions of law have been framed for consideration in the above matters : REFERENCE IN CONT.CAS(C) 772/2013, 347/2013, 484/2014,584/2014, 648/2014, 48/2016, 483/2016, 484/2016, 1147/2016,1116/2016, 1251/2016, 78/2017, 132/2017, 197/2017, 204/2017,216/2017 and 270/2017 before the Hon’ble High Court of Delhi.
RELEVANT STATUTORY PROVISIONS
The relevant provisions of the Hindu Marriage Act, 1955 and the Contempt of Courts Act, 1971 are extracted below:- THE HINDU MARRIAGE ACT, 1955 Section 13B 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 (68 of 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.
23 Decree in proceedings .— (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that– [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and] (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause(v), clause (vi) or clause (vii) of sub-section (1) of section 13.]
CONTEMPT OF COURTS ACT, 19712. Definitions – In this Act, unless the context otherwise requires, -(a) XXX XXX XXX(b) ―civil contempt‖ means wilful disobedience to any judgment, 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 contempts 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 contempts 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 (45 of 1860). Power of High Court to try offences committed or offenders found outside jurisdiction. – A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.
Punishment for contempt of court. – (1) 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.
(2) 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.
(3) 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.13.
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 invoking the said defence is bonafides.‖ DECISIONS IN SHIKHA BHATIA (SUPRA), AVNEESH SOOD (SUPRA) AND DINESH GULATI (SUPRA)
The Division Bench in the case of Dinesh Gulati (supra), in the said case, the appellant/husband and the respondent/wife had made a joint statement before the Family Court on 22.07.2014, stating that they had resolved all their matrimonial disputes including disputes relating to dowry/Stridhan articles and permanent alimony and they had decided to dissolve their marriage by mutual consent. One of the terms of settlement between the parties was that the husband would transfer an immovable property in the name of his wife within one month and pay her a particular sum of money on or before the Second motion was moved by the parties under Section 13B(2) of the Act. After about two years from the date their joint statement was recorded before the Family Court, the husband filed an application for initiating contempt proceedings against the wife on the ground of non-compliance of the order dated 22.07.2014, stating inter alia that she was not coming forth to file a joint petition under Section 13B(1) of the Act for obtaining a decree of divorce by mutual consent. The wife had countered the said submission by pointing out to the Family Court that the husband had not complied with his part of the obligations undertaken in the joint statement, having failed to transfer the immovable property in her name, within the agreed timeline.
An interpretation of Section 13B of the Act in the context of maintainability of contempt proceedings in the event one party fails to file or appear for moving a petition under Section 13B(1) or a motion under Section 13B(2) of the Act or take both steps, to obtain divorce. We have also been called upon to express a view on the effect of furnishing an undertaking before a court, either at the two stages contemplated in Section 13B or in separate court proceedings and whether such an act will amount to waiving the rights of a party under Section 13B(2) of the Act. Question No.(C) formulated by the learned Single Judge invites guidelines, if any, to be followed by the courts at the time of recording undertakings/agreements of the parties with respect to the two stages contemplated under Section 13B of the Act, for obtaining divorce. Question No. (D) juxtaposes the views expressed by the two learned Single Judges in the cases of Shikha Bhatia (supra) and Avneesh Sood (supra), wherein the defaulting spouses were held guilty of contempt of court for breaching the undertakings given by them, for obtaining divorce by mutual consent, against the decision of the Division Bench in the case of Dinesh Gulati (supra), wherein suo moto contempt proceedings initiated by the Family Court against the husband for breaching the undertaking recorded in his statement made jointly with the wife before the Family court, were quashed and the original divorce petition restored to its original position.
Question (C) Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both for obtaining divorce?
Answer: The general guidelines suggested to be followed by the Court while recording undertaking/agreement of the parties are as below:- (1) If the parties amicably settle their inter se disputes and differences, and arrive at a settlement, whether of their own accord, or with the aid and assistance of the court or on exercising the ADR processes (mediation/conciliation/Lok Adalat), or otherwise, the settlement agreement that may be drawn up, must incorporate the following:-
- i) Record in clear, specific and unambiguous language, the terms/stipulations agreed upon between the parties;
- ii) Record in clear, specific, simple and unambiguous language, the mode, manner, mechanism and/or method for the implementation or compliances of the terms/stipulations agreed upon between the parties;
iii) Record an undertaking of the parties that they will abide by and be bound by the agreed terms /stipulations of the settlement agreement;
iv) Stipulate a fine or penalty as may be agreed upon, in the event of a default of the agreed terms/stipulations of the settlement agreement by either side;
v) Provide for the consequences of the breach of the terms/stipulations of the settlement agreement;
vi) Record a declaration of both the parties in unequivocal and unambiguous terms that they have agreed on each and every term recorded in the settlement agreement, after carefully reading over and fully understanding and appreciating the contents, scope and effect thereof, as also the consequences of the breach thereof, including payment of the fine/penalty, if so agreed;
vii) The settlement agreement must state that the terms have been settled between the parties of their own free will, violation and consent and without there being any undue pressure, coercion, influence, misrepresentation or mistake (both of law and fact), in any form whatsoever. It should also be stated that the settlement agreement has correctly recorded the said agreed terms.
(2) The settlement agreement may include a term/stipulation that the parties have agreed that they would dissolve their marriage by mutual consent, which necessarily has to be in accordance with the law, as provided under Section 13B of the Hindu Marriage Act.
(3) The settlement agreement may include other terms/stipulations settled between the parties including payment of money, transfer of moveable/immovable properties as for example, jewellery/stridhan, maintenance amounts, alimony etc. or plans for the custody of the children/visitation rights of children. The said terms must be scrutinized by the court to satisfy itself that they are in accordance with the spirit of law and are enforceable and executable. (4) On the said settlement agreement being presented, along with a report (in the event the settlement is arrived at through mediation or conciliation or Lok Adalat) to the court where the proceedings between the parties are sub judice, the said court should apply the procedure and principles to be followed by a civil court under and/or analogous to the provisions of Order XXIII Rule 3 of the Code of Civil Procedure.
(5) To avoid any ambiguity or misunderstanding on the part of either of the parties, at a later stage, a clear and unambiguous undertaking to the court must be recorded.
(6) The statements of the parties may be recorded by the court after putting them on oath in the following manner:-
a) the parties should affirm the terms of the settlement;
b) the fact that they have executed the settlement agreement after fully understanding the terms, consents, effect and consequences thereof;
c) that the same has been arrived at of their own free will and volition;
d) that they would be liable for penal consequences in case of breach. (7) In the alternative, the court may direct the parties to file their respective affidavits affirming the terms and conditions of the settlement. If considered necessary, the court may ask the parties to formally prove not only the said affidavits, but also the settlement agreement executed by them.
(8) The Court must apply its judicial mind to satisfy itself that the settlement arrived at between the parties is not only bonafide, equitable and voluntary in nature, but is enforceable in law and is not opposed to public policy. The court must also satisfy itself that there is no impediment of any nature in accepting the said settlement and the undertakings of the parties and binding them down thereto. (9) After perusing the settlement agreement, recording the statements of the parties and/or examining the affidavits filed by them, as the case may be, the Court must specifically accept the statements of the parties and/or the undertakings given by them as also the terms/stipulations of the settlement agreement and direct that they shall remain bound by the same.
(10) Depending upon the jurisdiction of the Court, appropriate orders/decree be passed. The said order/decree, as the case may be, should clearly spell out the consequences of breach, violation of any of the terms of the settlement agreement. In the event any fine/penalty has been agreed to be paid under the terms of the settlement agreement or in case of breach of the same, the order shall state that the said amount will be recovered from the defaulting party. The parties must be informed that they will be liable to be punished for contempt of court in the event of any breach/violation/willful/deliberate disobedience of the terms of the settlement agreement.
(11) A decree/order shall be passed by the Court in respect of the subject matter of the suit/proceedings. For those matters/disputes that are not the subject matter of the suit/proceedings, where a settlement has been reached before a non-adjudicatory ADR fora, the Court shall direct that the settlement agreement shall be governed by Section 74 of the Arbitration and Conciliation Act (in case of a settlement through conciliation) and/or Section 21 of The Legal Services Authorities Act, 1987. (in respect of a settlement by a Mediator or a Lok Adalat) [Refer: Afcons Infrastructure Ltd. (supra)] (12) If the obligations under the settlement agreement/undertaking/consent order/decree are breached by one party, then, at the instance of the aggrieved party, appropriate orders shall be passed in accordance with law.
(13) For breach of the undertaking given to the concerned court or willful/deliberate violation of a consent order/decree, if so approached or otherwise, the court would take appropriate action as permissible in law to enforce compliance by the defaulting party by exercising contempt jurisdiction as contemplated under Section 2(b) of the Contempt of Court Act, 1971. This will however exclude any coercive orders compelling the defaulting party to give its consent for grant of a decree of divorce by mutual consent, notwithstanding any settlement/undertaking given by the parties before any fora.
