While declaring divorce by mutual consent the court has to follow the law in letter and spirit

High Court of Bombay: While considering the appeal filed by the appellant/wife against the impugned judgment and order passed by the Family Court at Mumbai, converting the marriage petition of the respondent/husband for divorce into a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 and thereby allowing the converted petition without giving an opportunity to appellant to place before the Court that the terms as agreed between the parties are not acceptable terms of settlement, the Bench comprising of Abhay Oka and GS Kulkarni, JJ., criticizing the impugned judgment and order held that there is a serious error on the part of the Family Court in passing a decree of divorce as merely allowing the application to convert the marriage petition into a petition for divorce by mutual consent under Section 13-B of the Act was not sufficient, as it was necessary that the requirements of Section 13-B are present in the averments/statements as made in the petition thereby directing the Family Courts to follow the law in letter and spirit, while hearing matters of divorce with mutual consent.

The appellant/wife  moved the Court against the impugned judgment of the learned Principal Judge since the decree was passed without giving a fair hearing to the wife as she was not present when the Family Court pronounced the impugned judgment and the affidavit was filed by the respondent/husband alone before the Family Court incorporating the consent terms, basing on which the decree for divorce with mutual consent was passed, were not acceptable by the appellant/wife since the husband had committed a fraud by lying to the court that all consent terms were fulfilled, where as another notarized document revealed different amount of permanent alimony.

The Court held that the Family Court  had acted in haste and has completely overlooked the mandate of provisions of Section 13-B read with Section 23 (1)(bb) of the Act as in cases where parties have sought a decree for divorce by mutual consent, a complete compliance of Section 13-B read with Section 23(1)(bb) in its letter and spirit is required to be followed and since the Family Court has converted the divorce petition into a petition for divorce by mutual consent under Section 13-B, without any corresponding amendments being made to the divorce petition and allowing the converted petition without giving an opportunity to the appellant/wife to be heard thus the Family Court judgment is “defective and incorrect”.  The Court stated non-adherence to this basic mandate of law in our opinion is sufficient for quashing and setting aside the impugned  judgment and directed the marriage petition to be heard afresh. [Bharti Bhausaheb Aher v. Bhausaheb Kautik Aher, 2017 SCC OnLine Bom 7, decided on 6th January 2017]

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