'Deed of Divorce' not valid, but mutual divorce can sustain:HC

Observing that divorce cannot be sought by spouses through a deed, the Bombay High Court has set aside a family court order which rejected a petition filed by a couple seeking divorce by mutual consent by waiving the 6-month mandatory waiting period for granting such relief.

The couple, Mittal and Manoj Panchal, got married in April 2007 in Mumbai as per Hindu rites but within a year disputes arose between them due to incompatibility, inequality and differences in their thoughts.

They decided to get separated and mutually decided to execute a 'deed of divorce' in June 2011. At that time, they were not aware that such a divorce was not recognised in law. Both got re-married and the wife applied for a USA visa as her second husband was settled there.

However, she could not get visa as the US Embassy demanded a divorce decree from the court. She then sought help of her first husband who cooperated and both applied to the family court under section 13-B of Hindu Marriage Act to get a divorce by mutual consent by waiving off the mandatory six-month waiting period.

The family court rejected their petition following which she approached the Bombay High Court.

A bench of High Court headed by Justice V K Tahilramani recently ruled, "We are of the opinion that the impugned order (of the family court) is not sustainable, both on facts and in law."

The family court primarily rejected the petition on the premises that the marriage between the appellants was already dissolved by the Deed of Divorce dated June 13, 2011, as per the custom and usage prevailing in the caste and community and, therefore, the petition filed under section 13-B of Hindu Marriage Act is not maintainable.

The family court also held that the deed of divorce, being an agreement between the appellants, cannot be set aside except on the ground that it was executed under force or pressure or by fraud by the parties to the agreement.

The High Court held that the reasons given by the family court in rejecting the petition were not legally sustainable.

The bench said the decree of divorce should have been passed because the marriage had been solemnised and later the parties had separated and mutually agreed to a divorce.

"Once these statutory conditions are satisfied then it gives jurisdiction to the court to entertain a petition for divorce by mutual consent. However, the learned judge, instead of making limited inquiry, as contemplated u/s 13-B of Hindu Marriage Act, dealt with the issues which were not at all attracted in the matter," said the bench.

"Marriage under the Hindu law is not treated as a contract simplicitor between two individuals. Under the Hindu law, it is treated as a sacrosanct relation between two human beings placing obligations and duties against each other."

"This position exists right from ancient times. So also divorce in Hindu marriage was a concept difficult to attain and was governed by stringent laws. No provision in Hindu law by itself operates as a dissolution of marriage nor it gives either party to the marriage an automatic right of divorce."

The court noted that the appellants have approached with a specific case that their marriage was not legally dissolved by virtue of deed of divorce executed on June 13, 2011 and, therefore, they sought the decree of divorce by mutual consent by filing petition under Hindu Marriage Act.

The judges observed that the appellants neither pleaded nor argued before the family court that their marriage was legally dissolved as per custom and usages prevailing in their caste and community. On the contrary, they had specifically pleaded that at the time of the execution of deed of divorce they were not aware about the procedure recognised in law for dissolution of marriage.

"The customary divorce can either be plea or defence set up by one of the party to such proceeding wherein the issue in respect of legality of the divorce by customary mode is involved. Without any pleadings to that effect, the learned judge on his own inferred the case of customary divorce. Therefore, the rejection of petition for this reason also not sustainable in law," ruled the bench.

The High Court held despite of the execution of deed of divorce among the couple, the marriage between the appellants still legally subsists. Therefore, the petition filed under section 13-B of Hindu Marriage Act, is maintainable in law.

As both have remarried, there was no point in asking them to wait for the mandatory six-month period, the bench noted. Accordingly, it remanded the case back to the family court for granting decree of divorce and asked the parties to appear before that court on January 2, 2014.