Can a spouse be held guilty for contempt if he or she has second thoughts about going for divorce by mutual consent after agreeing before a court to take that step, is a question referred by a Delhi High Court judge to a larger bench.
Voicing concern over the contradictory views taken earlier in rulings, Justice Manmohan expressed "serious doubts" on the practice of the courts hauling up spouses for contempt if they renege from their earlier stand of divorce by mutual consent during the six-month interval period.
Observing that questions of law arise for consideration by a division bench, the single judge said that it "would not be proper to force the party who has developed second thoughts in accordance with the option given by the statute, to go ahead with the divorce at the pain of contempt."
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He, however, asked the larger bench to decided "whether a party, which has under a settlement agreement decreed by a court undertaken to file a petition under section 13B(1) (divorce by mutual consent) 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".
In such cases, there is a two-stage process. Once a couple files a joint plea in court or gives a "settlement agreement" for mutual divorce, there is a waiting period of six months before the court allows their plea and grants divorce, if they still stick to their stand.
The single judge noted that there was an increase in this kind of cases in the courts where couples are seen dragging each other, and referred a batch of eight such matters to the larger bench.
Whether any guidelines are required to be followed by the court while recording agreement of the parties for obtaining divorce, was another query referred to the larger bench to be decided by it.
(Reopens LGD26)
Underlining the legal position, the single judge said when the Hindu Marriage Act itself mandates "continuous consent till the second motion is allowed" then how can "action of a party exercising its statutory right to rethink/ renege can be termed as mocking at the court or encouraging dishonesty or indulging in fraud/ misrepresentation".
It was hearing eight contempt pleas by either the husband or the wife accusing the partner of contempt for backtracking from their initial united stand.
Justice Manmohan, in his 29-page judgement, highlighted that "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 court also noted that if submission of spouses pressing for contempt is accepted, it would "amount to applying two contrary parameters in as much as though the parties would be asked to wait for the mandatory period of six months, yet at the same time neither of the parties would be allowed to rethink or go back on their undertaking during the waiting period".
