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2022 DIGILAW 3059 (MAD)

R. Bharath Bafna v. Priyanka

2022-09-01

R.N.MANJULA

body2022
ORDER : [PRAYER : Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.5 of 2021 in O.P.No.5347 of 2019 dated 24.05.2022, pending on the file of II Additional Family Court, Chennai and thereby pass a decree of divorce declaring the marriage between the parties to be dissolved under Section 13B(2) of the Hindu Marriage Act, 1955.] This Civil Revision Petition has been preferred challenging the order of the learned II Additional Family Court, Chennai, in I.A.No.5 of 2021 in O.P.No.5347 of 2019 dated 24.05.2022. 2. Heard Mr. T.C.S. Raja Chockalingam, learned counsel for the petitioner and Mr. G. Sathish Kumar, learned counsel for the respondent and perused the materials available on record. 3. The short facts of the case are as follows : The revision petitioner and the respondent got married on 01.05.2012 and started to live as husband and wife at the petitioner's residence. Due to incompatibility between the couple, they started to live separately since 10.08.2017. Since the couple could not patch up their differences, they came to a conclusion that their marriage has broken down irretrievably. Hence they agreed to get separated by dissolving their marriage through mutual consent. The articles belonging to the parties were exchanged and the parties have no claim against each other. They do not have children out of their marriage. They filed a petition under Section 13(B) of the Hindu Marriage Act for dissolution of their marriage by mutual consent. The petition for mutual consent was presented on 12.12.2019. 3.1. After presenting the petition, the couple were asked to appear on 12.06.2020, after the expiry of the 6 months cooling period. However, the hearing was advanced from 12.06.2020 to 11.02.2020 and the matter was referred to mediation. The mediation was not fructified. Thereafter, the respondent did not appear before the Court to assert the consent already given by them for divorce. Despite the case was adjourned several times, the respondent did not come forward to give her consent for divorce. And the petition filed for divorce by mutual consent is being adjourned from time to time. In the meanwhile, the revision petitioner filed I.A.No.5 of 2021, to enquire about the conduct and behaviour of the respondent for unilaterally withdrawing her consent. The said petition was dismissed. Aggrieved over that, this Civil Revision Petition has been preferred. 4. And the petition filed for divorce by mutual consent is being adjourned from time to time. In the meanwhile, the revision petitioner filed I.A.No.5 of 2021, to enquire about the conduct and behaviour of the respondent for unilaterally withdrawing her consent. The said petition was dismissed. Aggrieved over that, this Civil Revision Petition has been preferred. 4. Mr. T.C.S. Raja Chockalingam, learned counsel for the revision petitioner submitted that subsequent to the presentation of petition for divorce by mutual consent, the petitioner returned all the articles belonging to the respondent in the presence of elders. A list of items returned was prepared and the respondent herself has acknowledged the receipt of the articles and her father, brother and cousin had signed as witnesses in the list and that has also been marked as Ex.P1; the acknowledgement given by the respondent is also marked as Ex.P2; despite receiving all the articles and giving an undertaking that the respondent will not have any future claim against the petitioner, she withdrew her consent for divorce by mutual consent; she has also given a complaint against the petitioner under the Domestic Violence Act on 19.03.2020, by making false allegations and demanding that the petitioner has to pay Rs.1,25,00,000/- towards marriage expenses and Rs.15,00,000/- towards Furniture; the above conduct of the respondent is nothing but a fraudulent attempt to extract money from the revision petitioner; even though the learned Judge of the Family Court is bound to make enquiries about the conduct of the respondent and to pass appropriate order, he refused to allow the petition; therefore, he requested this Court to allow this Civil Revision Petition. 5. The learned counsel for the petitioner submitted that in the matters of this nature, the Court has to presume the fraudulent conduct on the part of the respondent and pass appropriate orders. Reference was made to the some of the decisions of this Court passed in this connection. The learned counsel for the revision petitioner cited the decision of the Allahabad High Court held in the case of Poonam Sharma Vs. The District Judge, Family Court and Others reported in MANU/UP/1601/2007 or 2008 (1) ADJ 330 , in support of his contention that a party is estopped from withdrawing consent, after having agreed for settlement and acknowledged the articles returned. In the said judgment, in paragraph No.7, it is held as under : “7. The District Judge, Family Court and Others reported in MANU/UP/1601/2007 or 2008 (1) ADJ 330 , in support of his contention that a party is estopped from withdrawing consent, after having agreed for settlement and acknowledged the articles returned. In the said judgment, in paragraph No.7, it is held as under : “7. From the decision of the Apex Court in Sureshta Devi's case, it appears that ordinarily, a party has a right to withdraw his consent if the application is bona fide. That appears to be the legislative intent in view of the provisions in Section 13B (2) for a second joint motion and also from the fact that a minimum waiting period of six months for the joint motion has been fixed. If a party changes his/her mind bona fide the consent can be withdrawn but if the withdrawal of the consent is tainted with fraud or is mala fide and works as an injustice upon the other spouse, the withdrawal of the consent ought to be refused for fraud and justice never dwell together and every act ecclesiastical or temporal tainted with fraud can be avoided. A party would also be estopped from withdrawing his consent if he has taken advantage of any settlement or arrangement made with the other party in view of the agreement for divorce. Withdrawing the consent in such a case would work as an injustice upon the other spouse. The averment made in the joint petition regarding the settlement of property disputes, agreement relating to custody of children enumerated in the joint petition reference of which has already been made indicate that permission of unilateral withdrawal by the wife may work as an injustice upon the husband. The orders impugned do not suffer from any illegality. The Family Court was, therefore, right in framing the issues, which it has framed. There is no merit in this petition. It is dismissed.” 6. The learned counsel for the revision petitioner also cited the decision of the Bombay High Court held in the case of Rajesh Vs. Bhavna reported in 2008 (6) Mh.L.J. and submitted that no spouse can unilaterally be allowed to withdraw the consent even on the ground of fraud or undue representation unless the grounds are proved satisfactorily. 7. Mr. The learned counsel for the revision petitioner also cited the decision of the Bombay High Court held in the case of Rajesh Vs. Bhavna reported in 2008 (6) Mh.L.J. and submitted that no spouse can unilaterally be allowed to withdraw the consent even on the ground of fraud or undue representation unless the grounds are proved satisfactorily. 7. Mr. G. Sathish Kumar, learned counsel for the respondent submitted that the respondent had accepted to file a petition by mutual consent for divorce by believing the words of the petitioner that he would give back all the jewels and money due to the respondent in connection with marriage expenses; after filing the petition, the petitioner started to cheat the respondent and only because of that, she had withdrawn her consent; the respondent did not receive any money, but the statement of the petitioner about receipt of Rs.16,00,000/- by the respondent is not true. He also submitted that as assured, the revision petitioner did not return all the jewelleries and other articles given to the respondent and he needs to settle a further sum of Rs.70,00,000/- on this aspect; therefore, the learned Family Judge is right in dismissing the application. 8. There is no quarrel about the marriage taken place between the couple on 01.05.2012. Since the couple did not live happily subsequent to their marriage, they agreed to dissolve their marriage by mutual consent. The petition for divorce by mutual consent by both the petitioner and the respondent was presented on 12.12.2019. Even though the couple were asked to make their appearance on 12.06.2020, after expiry of the mandatory period of six months, the hearing was advanced to 11.02.2020 and the matter was referred to mediation. It was claimed by the revision petitioner that by virtue of the negotiations held between the family members of both the parties, the articles belonged to the respondent were returned and in the list of articles, the respondent has affixed her signature. She had also acknowledged that the articles were received by her. The father, brother and cousin of the respondent have attested the list which is marked as Ex.P1. 9. In terms of Ex.P1, the respondent has stated that she had received back all the articles given to her for marriage from the petitioner which included the valuables such as gold, diamond and silver articles as listed in the annexure. The father, brother and cousin of the respondent have attested the list which is marked as Ex.P1. 9. In terms of Ex.P1, the respondent has stated that she had received back all the articles given to her for marriage from the petitioner which included the valuables such as gold, diamond and silver articles as listed in the annexure. It is categorically stated by the respondent that she will not have any future claim against the petitioner. Inspite of receiving the articles and giving an undertaking that there will not be any future claim, the order of divorce cannot be passed for the reason that the respondent has withdrawn her consent. It is not the claim of the respondent that in view of mediation and conciliation held between the parties, they have chosen to live together. So the couple still seems to be residing separately. The couple did not have children also. Having resolved the marriage between the respondent and the petitioner and presented the petition for divorce by mutual consent before the Court as early as on 12.12.2019, the respondent had given complaint against the revision petitioner for an allegede domestic violence. The said compliant was given on 19.03.2020. But she has received back all her articles listed in the annexure which is marked as Ex.P1 and acknowledged the same by affixing the signature on 04.03.2020. In the said complaint, it is claimed by the respondent that a huge sum was spent towards marriage expenses and the said expenses should be repaid by the petitioner. The revision petitioner has also given a complaint before the Inspector of Police, G3 Kilpauk Police Station, Chennai on 20.01.2021 by alleging that he was harassed by the respondent and her relatives by claiming money from him. 10. All the above developments subsequent to the petition filed for divorce by mutual consent would only show that the respondent had changed her mind and once again initiated some other legal action against the petitioner. It is not in dispute that the articles listed in Ex.P1 were returned to the respondent pending the proceedings and her acknowledgement was also given in this connection. In the said terms, the respondent has stated that she has no further claim against the petitioner. 11. The case dealt in the judgment reported in MANU/UP/1601/2007 or 2008 (1) ADJ 330 (Poonam Sharma Vs. In the said terms, the respondent has stated that she has no further claim against the petitioner. 11. The case dealt in the judgment reported in MANU/UP/1601/2007 or 2008 (1) ADJ 330 (Poonam Sharma Vs. The District Judge, Family Court and Others), would speak about the children of the couple for whom arrangements need to be made. But, here is a case where the couple have no children. Despite that the consent given for mutual divorce was withdrawn subsequently. In the case involved in the cited judgment also, a party who accepted for divorce by mutual consent had changed mind and withdrew consent by tactfully taking advantage of the settlement and arrangement that has been already made and accepted. Such unilateral withdrawal can only cause injustice to other side. If the withdrawal is not genuine, the Court itself can conduct an enquiry into the conduct of the other party who withdrew the consent unilaterally without any valid reasons and can pass appropriate orders. 12. In fact, in the judgment of the Rajasthan High Court held in the case of Anil Khatwani Vs. Nistha Khatwani reported in 2012 SCC Online Raj 1449, the relevant questions for consideration have been framed appropriately as under : “14. The questions, therefore, arise in the present appeal are: (i) whether the unilateral withdrawal of the consent by the respondent wife from her joint petition filed along with the appellant husband under Section 13B of the Act is genuine or not; (ii) whether the consent given at the time of filing joint petition under Section 13B of the Act was a free consent or not or was obtained by force, fraud or undue influence as stipulated under Section 23(1)(bb) of the Act inserted along with Section 13B of the Hindu Marriage Act, 1955 by Act No.68 of 1976 w.e.f. 27/5/1976. Reference was also made to Section 23(1)(bb) of the Hindu Marriage Act, in which, it is stated that the Court is empowered to pass a decree and grant the relief as prayed if divorce sought on a mutual consent was not obtained by force, fraud or undue influence. 13. In the case of Rajesh Vs. Reference was also made to Section 23(1)(bb) of the Hindu Marriage Act, in which, it is stated that the Court is empowered to pass a decree and grant the relief as prayed if divorce sought on a mutual consent was not obtained by force, fraud or undue influence. 13. In the case of Rajesh Vs. Bhavna reported in 2008 (6) Mh.L.J. cited by the learned counsel for the petitioner, the parties have accepted the return of jewelleries and gift articles and declared that they have no further claim against each other and thereafter, agreed to dissolve the marriage by mutual consent. Subsequently, it was pleaded by one party that the consent was obtained by force. The Court has observed that if such contention is made by one party without any good faith or fairness on his part, then he is estopped from deviating from his previous stand and declaration. It is further observed that such spurious conduct of the parties cannot be allowed to defeat the ends of justice and the Court should not accept the withdrawal of consent tainted with malafide intention and unjust reasons. It is appropriate to extract the portion of the said judgment in the case of Rajesh Vs. Bhavna reported in 2008 (6) Mh.L.J. as under : “32. Having examined the aforesaid legal position, it is clear that the estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. 33. With the above understanding of law, if one turns to the facts of the case in hand, at the cost of repetition, I must observe that the Petitioner, by making representation that he was agreeable for divorce by mutual consent provided - respondent-wife withdraws her criminal complaint, returns his ornaments given to her in the marriage and takes care and custody of the minor child with limited access to him. The said representation made by the husband was accepted and acted upon by the respondent-wife to her prejudice. She withdrew criminal complaint filed against the husband and his family members. She returned ornaments received by her in the marriage. The said representation made by the husband was accepted and acted upon by the respondent-wife to her prejudice. She withdrew criminal complaint filed against the husband and his family members. She returned ornaments received by her in the marriage. She agreed to have a custody of the minor son and on the top of it waived present and future right to claim maintenance for herself as well as for minor son. Thus, it is clear like a day light that the respondent-wife acted to her prejudice by accepting terms of compromise favourable to the petitioner-husband. The husband is, thus, estopped from withdrawing his consent. 34. The Family Court cannot be helpless spectator and duplicity of the petitioner-husband to induce the hapless wife, the respondent to waive maintenance claim for not only herself and her son, also compelled her to withdraw the criminal complaint in the hope of starting her life afresh. The husband by his conduct has caused the wife huge disadvantage. No spouse can unilaterally, wilfully be allowed to withdraw consent even on the grounds; such as fraud, undue force, representation unless grounds are proved satisfactorily. In the present case, if the withdrawal of consent by the petitioner-husband is upheld, it will cause anamoulous situation and serious prejudice to the respondent-wife, who is law abiding person. She will be left high and dry without recourse to any remedy and saddled with dead marriage. The respondent-husband has resorted to fraud and misrepresentation which cannot be permitted by the Courts of Law and equity.” 14. Thus the Courts have dealt the cases where mostly the husband had withdrawn his consent after having influenced the wife to withdraw all her complaints and cases filed against him on the belief that he would co-operate for getting a divorce by mutual consent. If the husband resorts to his villainic attitude after got his purpose served, then, it is obligatory on the part of the Court to conduct due enquiry in order to find out whether the said allegations and the withdrawal of consent is genuine or not. If it is proved to be not genuine and the husband had already given his consent voluntarily without any force or threat, the Court has got a duty to record its satisfaction in accordance with Section 23(1)(bb) and pass a decree in terms of Section 21(1)(a) of Hindu Marriage Act. 15. If it is proved to be not genuine and the husband had already given his consent voluntarily without any force or threat, the Court has got a duty to record its satisfaction in accordance with Section 23(1)(bb) and pass a decree in terms of Section 21(1)(a) of Hindu Marriage Act. 15. In the case in hand, the situation is quite contrary where the husband was persuaded to return all the articles of the wife and the wife had received all the articles by giving due acknowledgement. The list of articles so prepared was signed and attested by the close relatives of the wife and the attestors are none other than the father, brother and cousin of the wife. Since the wife's close relatives have affixed their signatures in the list and subsequently, the wife had also given acknowledgement and later turned 180 degree and come out with a new complaint under Domestic Violence Act, then, there are prima facie reasons to suspect her intentions to withdraw consent. In that case, the Family Court cannot be a helpless spectator by adjourning the proceedings from time to time for no purpose. 16. The petitioner has filed a petition to enquire into the conduct of the wife in order to arrive at a conclusion whether the withdrawal of consent was genuine or with any malafide intention. The Court has chosen to dismiss the petition by totally believing the statement of the respondent that she had given her consent by force and that she was made to sign on the blank papers. Unless the veracity of the above statement is tested by way of allowing herself for cross examination done the respondent, it cannot be known to Court whether the withdrawal of consent was genuine or with any ulterior motive. Despite the Revision Petitioner has produced before the court some prima-facie materials to suspect the withdrawal of consent by the wife, the learned Trial Judge had failed to conduct a proper enquiry on the quality of her consent and withdrawal of consent and record a finding to that effect. 17. Despite the Revision Petitioner has produced before the court some prima-facie materials to suspect the withdrawal of consent by the wife, the learned Trial Judge had failed to conduct a proper enquiry on the quality of her consent and withdrawal of consent and record a finding to that effect. 17. Hence I feel that the order of the learned Family Judge should be set aside and the matter should be remanded back to the Family Court with a direction to hold an enquiry and allow the parties to let in oral evidence in order to prove the following facts and render a finding in accordance with sec. 23(1)(bb) of the Act. (i) Whether the consent given by the wife at the time of filing joint petition under Section 13-B of the Act was a free consent? (ii) Whether the unilateral withdrawal of the consent by the respondent/wife from her joint petition filed along with the petitioner husband under Section 13-B of the Act is tainted with malafidiness or unfair reasons? 18. In the result, this Civil Revision Petition stands allowed and the order passed by II Additional Family Court, Chennai, in I.A.No.5 of 2021 in O.P.No.5347 of 2019 dated 24.05.2022, is set aside and the matter is remanded back to the II Additional Family Court, Chennai for holding an enquiry on the quality of the consent / withdrawal of consent of the respondent/wife and to render a finding in accordance with Sec.23(1)(bb) of the Act and then pass appropriate orders in the Original Petition filed by both parties under sec.13-B of the Act for divorce by mutual consent. No costs.