No Divorce By Mutual Consent Without Approaching Court When Parties Are Not Muslim: Madhya Pradesh HC

The Court also observed that a notary cannot grant divorce by executing the agreement of separation.

The Court was hearing an application under Section 482 of Cr.P.C. for quashing FIR for offences under Sections 498-A, 506, 34 of IPC and under Sections 3, 4 of Dowry Prohibition Act, 1961.

The bench of Justice Gurpal Singh Ahluwalia observed, “The parties are not Muslim by religion, therefore there cannot be any divorce by mutual consent without approaching the Court. How the Notary could notarize such an agreement, is also a matter of concern. A Notary cannot grant a divorce by executing the agreement of separation.”

Brief Facts-

In the present case, the respondent wife lodged an FIR alleging that she married the Applicant in Vadodara. Her parents provided dowry worth Rs. 20 lakhs, including Rs. 8 lakhs in cash. Her in-laws started taunting her for insufficient dowry after a few days of marriage. Her husband avoided physical relations with her. She alleged that her husband assaulted her, and demanded a car and Rs. 10 lakhs as dowry. Despite attempts to resolve the issue, the abuse continued leading to physical injuries. Later she filed an FIR.

The Court observed that since the agreement of separation has no sanctity in the eye of the law, therefore it cannot be said that any divorce has taken place between the parties.

According to the Court, even otherwise, if any divorce has taken place, still the FIR under Section 498-A of IPC can be lodged in respect of cruelty meted out to the complainant before the divorce.

The Court perused Section 28 of the Contract Act and said that any contract which prohibits a party from taking legal action is void while rejecting the contention of the applicant that the respondent wife earlier agreed that she would not take any judicial action against the applicant.

“…as per Section 41 of Specific Relief Act, no injunction can be granted thereby restraining a person from taking legal recourse.”, the Court added.

The Court mentioned the decision of the Supreme Court in Taramani Parakh Vs. State of Madhya Pradesh and Others reported in (2015) 11 SCC 260 and quoted, “The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in the absence of any specific role and material to support such role.”

The Court noted that there are specific allegations against the applicants of committing cruelty on account of non-fulfillment of demand of dowry in the FIR.

The Court said that no case is made out warranting interference.

Accordingly, the Court dismissed the application.