While noting that parties have an indefeasible and absolute right to withdraw their consent/petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, the Himachal Pradesh High Court recently dismissed the petition for invoking contempt proceedings against the Respondent (wife) for violating terms of settlement between parties.

The High Court clarified that the right of Respondent to withdraw her consent for mutual divorce being her absolute and indefeasible right, the direction issued by the Division Bench of the Court to the parties to abide by the terms of settlement cannot be construed to obliterate or negate such right.

The Single Judge Bench of Justice Satyen Vaidya observed that “The statement made by respondent before the Mediator can at best be said to be an assurance on her behalf. It cannot be construed to be an undertaking and not at least an undertaking before the Court so as to attract the mischief of contempt of court”.

Advocate Vijay Chaudhary appeared for the Petitioner, whereas no one appeared for the Respondent.

In a nutshell, the Petitioner had earlier filed an appeal before the Division Bench of the High Court against the order of maintenance passed by the Family Court of Chamba. While the appeal was pending, the parties arrived at a settlement through Mediation and accordingly Rs.15 lacs was to be given as a one time alimony to the Respondent and she consented to file a petition under for divorce under Section 13B of the Hindu Marriages Act, 1955. The Division Bench of the High Court passed a direction to abide by the terms settled and the appeal was disposed of.

The Petitioner however deposited Rs. 8 lacs in the account of the Respondent, but could not deposit the rest. When the Petitioner finally asked the Respondent to fulfil her commitment, she refused to sign the petition for divorce. Hence, the present petition seeking to hold the Respondent responsible for Contempt of Court as she did not abide by the directions of the Division Bench.

Upon perusal of the facts, the High Court examined Section 13-B and observed that the provision gives absolute and indefeasible right to the parties to withdraw the petition and thus, to compel her to abide by the terms she consented to, would be in derogation of the Section.

The High Court also observed that the direction by the Division Bench of the Court to the parties to abide by the terms of the settlement, also cannot be assigned a meaning in derogation of the statutory right available to a party to marriage to withdraw the petition under Section 13-B, for it will amount to re-writing a provision of the statute, which is wholly impermissible.

Therefore, finding that the Petitioner had deposited Rs. 8 lacs voluntarily and that the Respondent has made no averments against refusing to return the money, the Bench held that the petition under Section 12 of the Contempt of Courts Act is not maintainable and dismissed the same, while reserving the right of the petitioner to resort to the appropriate remedy.

Cause Title: Gurditta Ram Chauhan v. Mrs. Babita

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Himachal Pradesh High CourtJustice Satyen VaidyaHindu Marriage Act 1955

Pankaj Bajpai