'No-Fault Divorce'- Delhi Court Grants Mutual Divorce In Contested Case, Says It's Time To Make Compulsory Prenuptial Agreement

In a significant development, a Delhi Court recently issued a mutual divorce decree under Section 13B of the Hindu Marriage Act in a case where the wife had been contesting her husband's divorce petition for the past seven years. In the peculiar circumstances of this case, even though the parties had not formally filed a mutual consent divorce petition, the Court, recognizing the highly acrimonious matrimonial discord between them, inferred consent based on grounds of mutual cruelty, thereby granting the divorce.

Justice Harish Kumar, the Principal Judge of the Family Court at New Delhi's Patiala House Court, stated in a lengthy 89-page judgment that the Court under Section 10 of the Family Court which is a Special Legislation, feels empowered to do away with the form required under Section 13B of the HMA for dissolution of marriage of the parties in a petition as the present one where parties are living separately for more than a year, have not been able to live together, are not willing to live together anymore and there is consent in the form of separate prayer for dissolution of their marriage (albeit for the fault of other).

Advocate Varun Sharma appeared for the Petitioner while Advocates Prashant Mendiratta and Aditi Chaudhary appeared for the Respondent.

Background: The couple, both working as Bank Officials, entered into marriage in 2011 following Hindu rites and ceremonies. They were blessed with a baby girl in 2014. However, differences and discord began to emerge between them, escalating into a serious dispute. Subsequently, in 2016, the husband filed a divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act before the Family Court in Bandra, Mumbai, however, the wife contested the divorce petition and also filed a miscellaneous application under Sections 12, 18, 19, 20, 22, and 23 of the Protection of Women from Domestic Violence Act, 2005. Additionally, various miscellaneous applications were submitted by both parties. Later, the Supreme Court transferred the case to the Family Court at Patiala House Court, New Delhi.

Further while dealing with the case, it was observed by the Court that though the couple was willing to break their matrimonial ties permanently since the beginning of the litigation but even at the fag end of the trial/case, they could not agree till date for divorce by mutual consent since they could not agree on other issues involved between them.

The Judgement also noted that when an attempt to explore the possibility of a settlement was made by the Judge, the wife repeatedly submitted that she wanted “mukti” (emancipation/liberation/deliverance) from this relationship and wanted to lead a peaceful life away from the petitioner/husband. However, when she was made aware that she was opposing the divorce being sought by the husband and that she herself had not made any prayer for the grant of divorce, realizing this folly, the wife filed an application under Order VI Rule 17 of CPC for amending her reply/WS to incorporate counter prayer for grant of divorce on the ground of cruelty.

The Court, however, issued the mutual divorce decree under Section 13B of the Hindu Marriage Act while also providing substantial observations and outlining the rationale for granting a 'mutual divorce' in a contested case.

All other ingredients required under Section 13-B are available except the form: The Judge stated that the form to be followed under Section 13-B of the HMA is that a petition for dissolution of marriage by a decree of divorce is presented by both parties together requiring the parties to file one petition together for a decree of divorce. The Court further stated that however, in the present case their respective decisive willingness to dissolve their marriage has been continuously present for the last seven years but simply because willingness/consent were not in the particular form required under Section 13B of the HMA both have been suffering because of each other’s respective pleaded case/stand.

The Court further referring to the above-para asked, "If all the ingredients as required under Section 13B of the HMA are otherwise available in the matter, wouldn't it be in the interest of the parties in particular and of the society in general to extend the relief of Section 13B of the HMA to those who for any reason are unable to follow or observe the particular form required under Section 13B?". The Court also stated that, "Wouldn't it be recognising the further changing dynamics of modern relationship and going about more practical to ameliorate the suffering of person in unfortunate matrimonial tie?"

Answering the above-said contention, the Court stated, that if parties to a marriage are found to be involved in acrimonious matrimonial discord with grave allegations and with no hope of living together, refusing to dissolve their marriage simply because one party approaching the court has not been able to prove the fault of the other, would amount to forcing parties to suffer further irrespective of there being fault or no fault of the party and refusal of divorce would lead the parties to face law induced mental cruelty.

The time has come to make a compulsory prenuptial agreement: The Court in its Judgement also observed that the time has come to make a compulsory prenuptial agreement to be executed before the appointed authority after counseling the parties about the possible risk of marriage going haywire for a variety of reasons and making it mandatory to report breach every time a breach occurs under intimation to the party allegedly at fault, making it further clear that if breach not reported he/she would not be heard later on that he/she did not report thinking that she/he would improve.

No-fault-divorces: Taking a significant step towards the establishment of no-fault divorces, the Court in its judgement stated, "This Court is wondering if the respective willingness of the parties or prayer of the parties to dissolve their marriage would not amount to mutual consent to dissolve their marriage and their marriage be dissolved without going into merits of the respective allegations of the parties."

The Judge held that without going into question as who is at fault so as to allow husband's or wife's prayer for dissolution of their marriage on fault theory, hereby dissolve their marriage under Section 13B of the Hindu Marriage Act, 1955 taking their respective prayer to dissolve their marriage (based on the faults of other) as their respective consent to dissolve their marriage, from the date of decree to be drawn up following this judgement.

Furhter clarifying it, the Judge stated, one may tend to see the decision of this court as an successful attempt on the part of the Court to shirk its responsibility to adjudicate by analyzing or sifting through evidence on record however, interest of the State and of the society lies in giving quietus to conflicting claims particularly within family.

"In the present case if prayer of husband or wife is accepted holding the other spouse guilty of matrimonial offense, the person against whom findings would go will take the matter to higher forum thus drag the other into rigmarole of further round of litigation with added agony and harassment. Similarly, refusal of their respective prayer, if they failed to prove their allegation, would also lead to law induced mental cruelty as discussed above", stated the Jugdement.

Issues of maintenance and the custody of their minor daughter: The Court, prioritizing the best interests and welfare of the child, appointed both parents as legal guardians responsible for the daughter's school, academic, and extracurricular matters. The Court also instructed the mother to include the father's name in their daughter's school records, given that both parents reside in the same society in Gurgaon, the Court granted the father daily regular access and weekend overnight visitation rights with their daughter. The Court specifically noted that the mother, who had been the custodial parent for many years, couldn't be exempt from responsibility if their daughter refused to meet her father.

Furthermore, the Court issued directives for the daughter to consult with a child psychologist, aiming to address any unfounded fears she might have about her father and to help her understand the importance of her father's role in her life. The Court also encouraged frequent interactions between the daughter and her father, especially during vacations, tours, and overnight stays.

Regarding the matter of maintenance, the Court expressed the opinion that the expenses claimed by the mother were inflated. To address this, the Court categorized the expenses into needs, wants, and luxuries. Based on the income of both parties, the Court instructed both parents to equally contribute to 50% of the daughter's reasonable expenses, focusing only on expenses falling under the categories of necessity and wants.

The Judgement is doing rounds around social media terming it as a progressive one, reacting to the same, and speaking with Verdictum, Deepika Narayan Bhardwaj, filmmaker and social activist working on men's issues called the order remarkable & progressive.

Bhardwaj stated,"There's no point making young men & women doing rounds of courts for years for divorce when the marriage has completely broken down. This judgment by Judge Harish Kumar sets a precedent for its balanced nuance on matters of maintenance, custody and divorce. Prenuptial agreements are need of the hour along with shared parenting. For a balanced society we need to treat both men and women as equals and treat them as equal beings. "

Case Details: HMA. No. 181/2023