Case Note & Summary
The appellant-wife, Mrs. Bharti Bhausaheb Aher, filed an appeal against the judgment and order dated 20.6.2015 passed by the Principal Judge, Family Court at Mumbai, which allowed the conversion of the respondent-husband's divorce petition into a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, and granted a decree of divorce. The marriage was solemnized on 21.2.1999, and a son was born on 18.5.2000. After 11 years of marriage, the husband filed a petition for divorce on 2.8.2011 under Section 13(1)(ia) and (ib) and Section 26 of the Act, read with Section 7 of the Family Courts Act, 1984, seeking custody of the minor son. During the pendency of the petition, on 12.6.2015, the Family Court referred the parties to a Marriage Counsellor. On the same day, the counsellor filed an application (Exhibit 20) placing consent terms (Exhibit 22) signed by both parties, stating reconciliation was not possible and they were ready for divorce. A joint application (Exhibit 23) was filed to convert the petition into a mutual consent divorce. The Family Court allowed the conversion and granted divorce. The wife appealed, contending that her consent was not free and voluntary, and that the procedure was flawed. The High Court examined the record and found that the consent terms were signed on the same day as the referral to counselling, and the Family Court did not record any satisfaction regarding the genuineness of the consent. The court held that the conversion of a contested petition into a mutual consent petition without a fresh petition and without ensuring the consent was free and voluntary was erroneous. The impugned judgment was set aside, and the matter was remanded to the Family Court for fresh consideration. The appeal was allowed.
Headnote
A) Family Law - Divorce by Mutual Consent - Section 13B Hindu Marriage Act, 1955 - Conversion of Contested Petition - The Family Court converted the husband's contested divorce petition into a mutual consent divorce petition based on consent terms dated 12.6.2015, without verifying the voluntariness of the wife's consent. The High Court held that the procedure adopted was erroneous as the consent must be free and subsisting at the time of the petition, and the court must ensure that the parties are ad idem. The impugned judgment was set aside and the matter remanded for fresh consideration. (Paras 1-10) B) Family Law - Consent Terms - Validity - Section 13B Hindu Marriage Act, 1955 - The consent terms were signed on the same day the parties were referred to a marriage counsellor, and the wife alleged coercion. The High Court found that the Family Court did not record satisfaction regarding the genuineness of consent, which is mandatory under Section 13B. The appeal was allowed and the decree of divorce was quashed. (Paras 5-10)
Issue of Consideration
Whether the Family Court was justified in converting a contested divorce petition into a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, without ensuring that the consent of the appellant-wife was free and voluntary.
Final Decision
The appeal is allowed. The impugned judgment and order dated 20.6.2015 passed by the Family Court at Mumbai is set aside. The matter is remanded to the Family Court for fresh consideration in accordance with law. No order as to costs.
Law Points
- Consent must be free and voluntary
- Section 13B requires mutual consent at time of petition
- Conversion of contested petition to mutual consent requires fresh petition
- Family Court must ensure consent is not coerced
