1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4500 OF 2009 Pratichi Shradhanand Mishra ... Petitioner v/s Shradhanand Mishra ... Respondent Mr.A.M.Vernekar for the petitioner. Mr.Shailesh Shah i/by Smt.Eventa A. Gonsalves for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 10TH JULY, 2009 P.C.: 1. Rule. Rule made returnable forthwith, by consent. 2. The petitioner has filed the present petition against the order passed by the Family Court refusing her permission to withdraw her consent to the terms arrived at between the parties on 10.10.2008. By the impugned order, the application 2 of the petitioner has been rejected on 1.4.2009. 3. The undisputed facts in the present petition are as follows:- . The petitioner married the respondent in Mumbai on 20.1.1992. They have a daughter who was born on 22.12.1995. The petitioner and the respondent jointly purchased a flat being No.803 in “F” Wing of Bldg. No.7, known as Mari Gold at Kandivali, Mumbai. 4. The respondent filed a divorce petition on 2.11.2006 which is pending before the Family Court under Section 13(I) of the Hindu Marriage Act. According to the petitioner, the respondent left the matrimonial home and started residing in the flat belonging to his employer at Belapur from 18.2.2007. 5. The petitioner filed a reply to the divorce petition and a counter-claim as well. The respondent filed his written statement to the counter-claim. 6. The parties were directed to approach the Marriage Councillor to attempt to resolve their disputes. Accordingly they entered into the consent 3 terms on 14.5.2007. However, before a decree could be passed by the Family Court, an application was filed by the respondent on 10.7.2007 for withdrawal of his consent to the terms dated 14.5.2007. This application was resisted by the petitioner and by an order dated 21.8.2007, the Family Court permitted the respondent to withdraw the consent to the consent terms with payment of cost of Rs.1000/- to the petitioner. 7. The petitioner then filed an application for interim maintenance for her daughter. The respondent contested this application by an order of 27.3.2008. The Family Court directed the respondent to pay a sum of Rs.5000/- per month to his daughter by way of interim maintenance from the date of the application i.e. from 21.8.2007. 8. According to the petitioner, the aforesaid flat was purchased by availing of a loan in the name of the respondent. He was expected to pay the equated monthly installments which he soon stopped paying. Therefore, by an application, the petitioner sought direction to the respondent to pay the amount regularly. This direction was passed by the Family Court on 27.3.2008. It appears that the respondent 4 then filed a petition bearing No.B-117 of 2008 before the Family Court for a declaration that he was the sole owner of the aforesaid flat and for removal of the petitioner’s name as a joint owner and joint member of the Society. That petition is pending before the Family Court. 9. During the pendency of the proceedings before the Family Court, the petitioner and the respondent once again resolved to dissolve their marriage by obtaining a divorce by mutual consent. They agreed to several terms and the consent terms were executed on 8.10.2008 before the Marriage Councillor. Additional terms were also arrived on 23.10.2008. It appears that before any decree could be passed in terms of the consent terms, the petitioner realized that the consent terms did not benefit her in any manner and, therefore, she filed an application on 13.11.2008 for withdrawal of her consent to the terms executed by them on 10.10.2008 and 23.10.2008. The respondent objected to this application by contending that he had already prepared a lease deed for the aforesaid flat in accordance with the consent terms and had got it duly franked. The respondent further stated that the reasons given by the petitioner in her application for withdrawing 5 her consent to the terms should not be accepted by the Court. He has further stated that he had paid the amount of Rs.70,000/- as agreed under the consent terms and, therefore, the Court should reject the application of the petitioner. 10. The Family Court has accepted the contentions of the respondent and has refused permission to the petitioner to withdraw her consent. The Family Court observed that it was not possible to accept the petitioner’s contention that she was pressurized into accepting the terms when she executed the consent terms as she was educated and was an artist performing in television serials. The Court observed that the petitioner had not only signed the consent terms on 10.10.2008 but also on 23.10.2008 and, therefore, it was not possible to accept the contentions raised by the petitioner in her application. 11. Mr.Vernekar, the learned advocate appearing for the petitioner submits that once a party before the Family Court decides to withdraw his or her consent, he or she must be permitted to do so till the decree is passed in terms of the consent terms. He submits that the Family Court could not have questioned the 6 motives of the petitioner or the reasons for withdrawing her consent. He relies on the judgment of the Supreme Court in the case of Sureshta Devi v/s Om Prakash, reported in 1991 Mh.L.J. 324. He also relies on the judgment of a learned Single Judge of this Court (Khanvilkar, J.) dated 6.8.2003, in Writ Petition No. 4537 of 2003, in which the judgment in the case of Sureshta Devi has been followed. Mr.Vernekar then points out that the Division Bench of this Court in the case of Sanjay Pahariya v/s Smruti Paharia, reported in 2008 (4) Bom.C.R. 556, has followed Sureshta Devi’s case and has concluded that consent of the parties to obtain a divorce by mutual consent must continue till the decree is passed. This judgment of the Division Bench has been upheld by the Supreme Court in the case of Smruti Pahariya v/s Sanjay Pahariya, reported in CDJ 2009 SC 1031, in Civil Appeal No. 3645 of 2009 decided on 11.5.2009. 12. Mr.Shah, learned advocate appearing for the respondent submits that the petitioner should not be permitted to withdraw her consent as that would adversely affect the petitioner. He submits that having once given her consent to the terms agreed upon by the parties, the petitioner is estopped from 7 withdrawing her consent. According to the learned advocate, the respondent had acted to his detriment while implementing certain clauses of the consent terms. He, therefore, submits that the Family Court has rightly refused the permission to the petitioner. The learned advocate has drawn my attention to the fact that the petitioner was paid Rs.70,000/- under the consent terms and that the respondent had to pay a huge amount in order to have the lease deed in respect of the aforesaid flat, franked. Apart from this, the respondent had to pay the drafting fees of the advocate who drafted the lease deed and, therefore, according to the learned advocate, the petitioner is not entitled to any relief in the petition. He then points out the judgment in the case of Rajesh Pratap Sainani v/s Mrs.Bhavna Rajesh Sainani, in Writ Petition No. 3556 of 2008, delivered on 26.8.2008 by a learned Single Judge of this Court (V.C.Daga, J.), wherein the learned Judge has considered the case of Sureshta Devi (supra) as well as several other cases. The learned Judge has observed that, when factually the terms have been acted upon to the prejudice of a party accepting the representation made by the other, it would give rise to estoppel. 8 13. While considering the aforesaid judgments, it is necessary to emphasize the factual situation in the present case, namely, that consent terms were initially entered into between the parties on 14.5.2007. Two months thereafter the respondent herein filed an application before the Family Court withdrawing his consent to the terms. That application was granted in August, 2007 on payment of costs to the petitioner. Subsequently, in October, 2008, the parties agreed on certain terms. However, there was no decree passed. Before any decree could be passed, the petitioner sought to withdraw her consent to the terms which has not been permitted. A perusal of the consent terms indicates that Rs.70,000/- has been paid by the respondent to the petitioner. However, admittedly, this amount was paid towards the interim maintenance payable to his daughter who is living with the petitioner and whose custody is with the petitioner. Therefore, in my opinion, the payment of this amount would not amount to the respondent having acted to his detriment and implemented the consent terms. This amount was payable under orders of the Family Court. The respondent was in arrears of payment of the interim maintenance and all that the respondent has done by payment of this amount to the petitioner is 9 to comply with the order directing the payment of maintenance of Rs.5,000/- per month. 14. The respondent has tried to make capital out of the fact that he had got a lease deed drafted and franked for which he had paid a large amount of money. This deed of lease is dated 23.11.2008. The application was filed by the petitioner for withdrawal of her consent on 13.11.2008, well before the deed of lease was drafted or franked. The respondent has taken these steps without there being any order from the Court on the consent terms. Without the decree being passed in terms of consent terms, there was no question of a lease deed being prepared. In any event, the respondent was well aware that the petitioner had filed an application for withdrawal of her consent on 13.11.2008 itself. Therefore, in my opinion, the respondent’s contention regarding estoppel is without merit. 15. It is now well settled that when parties before the Family Court agree mutually for a divorce, that consensus must continue till the decree of divorce is passed. A party can always withdraw the consent till the decree is passed. The Supreme Court, in the case of Sureshta Devi (supra) has held that 10 under Section 13B(2) of the Hindu Marriage Act, the requirement is that there should be mutual consent of the parties when they move the Family Court with a request to pass a decree of divorce. That consent is expected to continue till the decree is passed. However, if there is no mutual consent, the Court does not have jurisdiction to pass the decree. If the Court, after making an enquiry, passes a divorce decree at the instance of one of the parties and against the consent of the other, such a decree cannot be regarded as a decree by mutual consent, as held by the Apex Court. The Supreme Court has observed thus in the case of Smruti Pahariya (supra): “47. We endorse the views taken by this Court in Sureshta Devi (supra) as we find that on a proper construction of the provision in Section 13B(1) and 13B(2), there is no scope of doubting the views taken in Sureshta Devi (supra). In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra (supra) has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case. 49. We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13B of the said Act can be passed by the Court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the Court grants the 11 decree, the Court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above. 50. In our view it is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under Section 13B. So in cases under Section 13B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.” 16. Although admittedly this is not a case where the petition has been filed under Section 13B(1) but under Section 13(1)(a) of the Hindu Marriage Act, the same principles would follow. This is because the parties had agreed by the consent terms to dissolve the marriage by mutual consent by converting the petition to one under Section 13B. 17. The judgment in the case of Rajesh Pratap Sainani (supra), in my opinion, would not apply to the facts in the present case. As stated earlier, the respondent has acted in undue haste by having 12 the lease deed drafted and franked. He has not been put to any disadvantage by having paid Rs.70,000/- to the petitioner as this was the amount payable to his daughter by way of interim maintenance under orders of the Family Court. He was in arrears of paying that amount and, therefore, by paying that amount to the petitioner the respondent has not done any favour to her nor can it be said that he has acted on the consent terms but he has merely implemented the orders of the Family Court. 18. In the circumstances, therefore, the Family Court has erred in disallowing the application of the petitioner to withdraw her consent to the terms signed by the parties before the Marriage Councellor. The impugned order is set aside. The proceedings before the Family Court shall proceed in accordance with law. 19. Writ petition allowed. Rule made absolute. No order as to costs. ..... 13