SC - DV Act could not be maintained as long as the decree of divorce remain in force. Quashes domestic violence case by woman against ex-husband after a mutual consent divorce

                                                                     REPORTABLE


                     IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPEAL NO. 1635 of 2011
           (Arising out of SLP(Crl.) No. 7787 of 2010)


Inderjit Singh Grewal                                       ...Appellant

                                          Versus

State of Punjab & Anr.                                      ...Respondents


                                J U D G M E N T



Dr. B.S. CHAUHAN, J.


1.   Leave granted.


2. The instant appeal reveals a very sorry state of affair where

the wife files a criminal complaint before the competent court

to initiate criminal proceedings against her husband alleging

that they had obtained decree of divorce by playing fraud upon

the court without realising that in such a fact-situation she

herself   would     be   an    accomplice   in     the   crime   and    equally

responsible   for    the      offence.   More   so,   the   appeal     raises   a

substantial question of law as to whether the judgment and

decree of a competent Civil Court can be declared null and void

in collateral proceedings, that too, criminal proceedings.


3. This criminal appeal arises from the judgment and final order

dated 9.8.2010 in Criminal Misc. No. M-29339 of 2009 (O&M)
passed by the High Court of Punjab & Haryana at Chandigarh, by

which the High Court has dismissed the application filed by the

appellant under Section 482 of Code of Criminal Procedure, 1973

(hereinafter called as `Cr.P.C.') for quashing the complaint

No. 87/02/09 dated 12.6.2009 filed by             respondent no. 2 under

Section 12 of the Protection of Women from Domestic Violence

Act, 2005 (hereinafter called the `Act 2005').


4. Facts and circumstances giving rise to present case are as

under:

A. That   the   appellant     and    respondent   no.   2   got   married   on

23.9.1998 at Jalandhar as per Sikh rites and from the said

wedlock a son, namely, Gurarjit Singh was born on 5.10.1999.

The parties to the marriage could not pull on well together

because of temperamental differences and decided to get divorce

and, therefore, filed HMA Case No. 168 of 19.9.2007 before the

District Judge, Ludhiana under Section 13-B of Hindu Marriage

Act, 1955 (hereinafter called the `Act 1955') for dissolution

of marriage by mutual consent.          In the said case, statements of

appellant and respondent no. 2 were recorded on 19.9.2007 and

proceedings were adjourned for a period of more than six months

to enable them     to ponder over the issue.

B. The parties again appeared before the court on 20.3.2008 on

second motion and their statements            were recorded and both of

them   affirmed   that   it    was    not   possible    for   them   to   live

                                                                      2
together and, therefore, the learned District Judge, Ludhiana

vide    judgment      and    order      dated     20.3.2008          allowed    the     said

petition and dissolved their marriage.

C.         Respondent        no.    2     filed      a    complaint     before     Senior

Superintendent        of    Police, Ludhiana against the appellant                        on

4.5.2009 under the provisions of the Act 2005 alleging that the

decree of divorce obtained by them was a sham transaction.

Even    after      getting    divorce,        both       of   them    had   been   living

together as husband and wife.                     She was forced to leave the

matrimonial        home.    Thus,    she      prayed      for   justice.        The     said

complaint     was     sent    to    SP,    City-I,        Ludhiana      for    conducting

inquiry.        The    said    SP,      City-I       conducted       the    full-fledged

inquiry and submitted the report on 4.5.2009                               to the effect

that the parties had been living separately after divorce and,

no case was made out against the present appellant. However, he

suggested       to seek legal opinion             in the matter.

D. Accordingly, legal opinion dated 2.6.2009 was sought, wherein

it was opined that the parties had obtained the divorce decree

by mutual consent and the allegations made by                         respondent no. 2

against the appellant were false and baseless and the purpose

of filing the complaint was only to harass the appellant.

E.     Respondent no. 2 subsequently filed a complaint under the

Act    2005   on    12.6.2009.          The    learned        Magistrate       issued    the

summons to the appellant on the same date.                       The Magistrate vide


                                                                                   3
order dated 3.10.2009 summoned the minor child for counseling.

The appellant, being aggrieved of the order of Ld. Magistrate

dated     12.6.2009,       filed    application       dated     13.10.2009        under

Section 482 Cr.P.C. for quashing the complaint dated 12.6.2009.

F. In    the   meanwhile,     respondent       no.    2    filed   Civil      Suit   on

17.7.2009      in    the   court    of   Civil       Judge    (Senior   Division),

Ludhiana,      seeking     declaration       that    the     judgment   and    decree

dated 20.3.2008, i.e. decree of divorce, was null and void as

it had been obtained by fraud. The said suit is still pending.



G.                  Respondent     no.   2   also     filed    application        dated

17.12.2009 under Guardians and Wards Act, 1890 for grant of

custody and guardianship of the minor child Gurarjit Singh and

the same is pending for consideration before the Additional

Civil Judge (Senior Division), Ludhiana.

H.        Respondent no. 2 on 11.2.2010 also lodged an FIR under

Sections 406, 498-A, 376, 120-B of               the Indian Penal Code, 1860

(hereinafter called `IPC') against the appellant and his mother

and sister.

I.        The High Court vide impugned judgment and order dated

9.8.2010 dismissed the application filed by the appellant.

        Hence, this appeal.


5. Shri Ranjit Kumar, learned senior counsel appearing for the

appellant has submitted that the High Court erred in rejecting

                                                                              4
the application of the appellant under Section 482 Cr.P.C., as

none of the reliefs claimed by the respondent no.2 could be

entertained      by    the    criminal      court       while    dealing    with        the

complaint;      the    complaint      itself       is   time     barred,    thus,      the

Magistrate      Court     could      not    take        cognizance    thereof.          The

complaint has been filed because of malice in order to extract

money from the appellant. More so, the plea of fraud alleged by

the respondent no.2 in the complaint for obtaining the decree

of    divorce    before      the Civil Court as per her own version,

succinctly reveals that she herself had been a party to this

fraud. The High Court failed to appreciate as to what extent

her    version    could       be   accepted        as   she     herself    being       the

accomplice in the said offence of fraud committed upon the

court. Even if the allegations made therein are true, she is

equally liable for punishment under Section 107 IPC. More so,

the reliefs claimed by the respondent no. 2 in the civil suit

for declaring         the decree of divorce as                null and void and in

another suit for getting the custody of the child referred to

hereinabove, would meet her requirements.                         Thus, the appeal

deserves to be allowed.


6. On the contrary, Shri Manoj Swarup, learned counsel appearing

for    the   respondent       no.2    has    vehemently         opposed    the       appeal

contending that decree of divorce is a nullity as it has been

obtained by fraud. The relationship of husband and wife between

                                                                                 5
the     appellant      and    respondent   no.2   still   subsists   and     thus,

complaint is maintainable. The court has to take the complaint

on its face value and the allegations made in the complaint

require adjudication on facts. The                 issue of limitation etc.

can be examined by the Magistrate Court itself.                      The appeal

lacks merit and is liable to be dismissed.

7. We    have    considered the rival submissions made by learned

counsel for the parties and perused the record.


8. Before we proceed to determine the case on merit, it is

desirable to highlight the admitted facts of the case:

I. Appellant and respondent no.2 are              highly qualified persons.

Both     of     them    are    employed     and   economically   independent.

Appellant is an Assistant Professor and respondent no. 2 is a

Lecturer.       The    appellant     is    Ph.D   and   respondent    no.2    has

registered herself for Ph.D.               They are competent to understand

the complications of law and other facts prevailing in the

case.


II.           Both of them got married in year 1998 and had been

blessed with a son in year 1999. There was no complaint by

respondent no.2 against the appellant of any cruelty, demand of

dowry etc. before getting the decree of divorce dated 20.3.2008

by mutual consent.




                                                                        6
III.         The decree of divorce has been obtained under Section

13-B of the Act 1955. Respondent no.2 was examined by the court

on first motion on 19.9.2007 wherein she stated,             inter-alia,

as under:

       "We are living separately from each other since
       23.9.2005. Now there is no chance of our living
       together as husband and wife."
IV.Respondent no.2 was examined in the second motion by the

learned    District   Judge,   Ludhiana   on   20.3.2008,   wherein   she

stated as under:

          "My   statement     was   recorded  on   19.9.2007
          alongwith the statement of my husband Inderjit
          Singh Grewal.     Six months time was given to us
          to ponder over the matter but we could not
          reconcile. One child was born from our wedlock
          namely Gurarjit Singh Grewal whose custody has
          been handed over by me to my husband Inderjit
          Singh Grewal and he shall look after the welfare
          of the said child. We have settled all our
          disputes regarding dowry articles and past and
          future permanent alimony. Now there is nothing
          left out against each other. A draft of
          Rs.3,00,000/- ....has been received by me towards
          permanent alimony and maintenance and in lieu of
          dowry articles left by me in the matrimonial
          home. We are living separately since 23.9.2005.
          After that there is no co-habitation between us.
          There is no scope of our living together as
          husband and wife. I will remain bound by the
          terms and conditions as enshrined in the
          petition.    I have left with no claim against
          petitioner No.1. Our marriage may be dissolved
          by passing a decree of divorce by mutual
          consent."


V. The learned District Judge, Ludhiana granted the decree of

divorce dated 20.3.2008 observing as under:



                                                                 7
        "They have settled all their disputes regarding
        dowry articles, past and future alimony....They
        are living separately from each other since
        23.9.2005...The petitioners have not been able to
        reconcile....The petitioners have settled all
        their disputes regarding dowry, stridhan and
        past and future permanent alimony....The custody
        of the son of the petitioners is handed over to
        Inderjit Singh Grewal by Amandeep Kaur. The
        petition is allowed. The marriage between the
        petitioners is henceforth declared dissolved...."


VI.The complaint dated 4.5.2009 filed by respondent no. 2 before

the Senior Superintendent of Police, Ludhiana was investigated

by the Superintendent of Police, City-I, Ludhiana.              He recorded

statements of several neighbours and maid servant working in

appellant's house and submitted the report to the effect that as

the husband and wife could not live together, they obtained the

decree of divorce by mutual consent. However, the complainant

Amandeep Kaur had alleged that she was induced by her husband to

get divorce for settling in the United States and it was his

intention          to kick her out from the house.             However, the

husband stated that she had been paid Rs.3,00,000/- in the court

by   draft   and    Rs.27,00,000/-   in   cash   for   which   the   husband

Inderjit Singh Grewal had entered into an agreement to sell his

ancestral property.       The complainant had not been living with

the appellant after the decree of divorce and they were not

having physical relationship with each other.             It was further

suggested in the report that legal opinion may also be taken.



                                                                     8
VII.          Legal opinion dated 2.6.2009                had been to the effect

that the parties had taken divorce by mutual consent due to

their differences. The allegation to the extent that they had

been living together even after divorce were false and baseless

and had been labelled only to harass the appellant.


9. The    instant      case     is   required       to    be   considered    in    the

aforesaid factual backdrop.

      So far as the complaint dated 12.6.2009 is concerned, there

had    been   allegation       of    mis-behaviour        against    the    appellant

during the period of year 2005. Respondent no. 2 alleged that

during    that      period     she   had    not    been    treated    well    by   the

appellant, thus, she had to take shelter in the house of her

parents; all her belongings including the dowry articles were

kept by the appellant and his parents.                     She has further given

details how both of them have obtained decree of divorce by

mutual consent as they wanted to settle in United States and

therefore, they had decided to get divorce on paper so that the

appellant     may    go   to    U.S.A.     and    get    American    citizenship    by

negotiating a marriage of convenience with some U.S. citizen and

divorce her and again re-marry the complainant.                         She further

alleged that even after decree of divorce she had been living

with the appellant till 7.2.2009 and continued co-habitation

with him. They had visited several places together during this

period. The child had been forcibly snatched from her by the

                                                                              9
appellant. Therefore, she was entitled to the custody of the

minor child along with other reliefs.


10.The question does arise as to whether reliefs sought in the

complaint can be granted by the criminal court so long as the

judgment and decree of the Civil Court dated 20.3.2008 subsists.

Respondent no.2      has prayed as under:

          "It is therefore prayed that the respondent no.1
          be directed to hand over the custody of the
          minor child Gurarjit Singh Grewal forthwith. It
          is also prayed that the respondent no.1 be
          directed to pay to her a sum of Rs.15,000/- per
          month   by way of rent    of the premises to be
          hired by her at Ludhiana for her residence. It
          is also prayed that all the respondents be
          directed to restore to her all the dowry
          articles as detailed in Annexure A to C or in
          the alternative they be directed to pay to her a
          sum of Rs.22,95,000/- as the price of the dowry
          articles. Affidavit attached."

               Thus, the reliefs sought have been threefolds:

(a) Custody of the minor son; (b) right of residence; and (c)

restoration of dowry articles.


11.It     is   a   settled legal proposition that where a person gets

      an order/office by making misrepresentation or playing fraud

upon the competent authority, such order cannot be sustained in

the eyes of the law as fraud unravels everything.              "Equity is

always known to defend the law from crafty evasions and new

subtleties invented to evade law".             It is a trite that "Fraud

and     justice    never   dwell   together"    (fraus   et   jus   nunquam


                                                                    10
cohabitant).      Fraud is an act of deliberate deception with a

design to secure something, which is otherwise not due. Fraud

and   deception     are   synonymous.       "Fraud    is   an    anathema    to    all

equitable principles and any affair tainted with fraud cannot be

perpetuated    or    saved    by    the     application         of   any   equitable

doctrine". An act of fraud on court is always viewed seriously.

(Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8

SCC 383)


12.However,    the    question     does     arise    as    to    whether      it   is

permissible for a party to treat the judgment and order as null

and void without getting it set aside from the competent court.

           The issue is no more res integra and stands settled by

a catena of decisions of this Court. For setting aside such an

order, even if void, the party has to approach the appropriate

forum.   (Vide:     State    of    Kerala    v.     M.K.   Kunhikannan      Nambiar

Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906; and

Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt.

Ltd., AIR 1997 SC 1240).


13.In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377,

this Court held that there cannot be any doubt that even if an

order is void or voidable, the same requires to be set aside by

the competent court.




                                                                             11
14.In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. &

Ors., (2006) 7 SCC 470, this Court considered the issue at

length and observed that if the party feels that the order

passed by the court or a statutory authority is non-est/void, he

should   question   the    validity   of    the   said   order     before      the

appropriate forum resorting to the appropriate proceedings. The

Court observed as under:­

         "It is well settled principle of law that even a
         void order is required to be set aside by a
         competent Court of law, inasmuch as an order may
         be void in respect of one person but may be
         valid in respect of another. A void order is
         necessarily not non-est. An order cannot be
         declared to be void in collateral proceedings
         and that too in the absence of the authorities
         who were the authors thereof."         (Emphasis
         added)


     Similar view has been reiterated by this Court in Sneh

Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194.


           From the above, it is evident that even if a decree is

void ab initio, declaration to that effect has to be obtained by

the person aggrieved       from the competent court. More so, such a

declaration cannot be obtained in collateral proceedings.


15.Respondent   no.2      herself   had    been   a   party   to   the        fraud

committed by the appellant upon the civil court for getting the

decree of divorce as alleged by her in the impugned complaint.



                                                                         12
Thus,     according to her own admission she herself is an abettor

to the crime.


              A person alleging his own infamy cannot be heard at

any   forum   as     explained     by   the   legal   maxim   "allegans    suam

turpetudinem non est audiendus". No one should have an advantage

from his own wrong (commondum ex injuria sua memo habere debet).

No action arises from an immoral cause (ex turpi cause non

oritur action).        Damage suffered by consent is not a cause of

action    (volenti    non   fit    injuria).    The   statements/allegations

made by the respondent no.2 patently and latently involve her in

the alleged fraud committed upon the court.                   Thus, she made

herself    disentitled for any equitable relief.

16.The offence of abetment is complete when the alleged abettor

has instigated another or engaged with another in a conspiracy

to commit offence. (Vide: Faguna Kanta Nath v. The State of

Assam, AIR 1959 SC 673;           and Jamuna Singh v. State of Bihar AIR

1967 SC 553).      If more than one person combining both in intent

and act, commit an offence jointly, each is guilty, as if he has

done the whole         act alone.        Offence has been defined under

Section 40 IPC and Section 43            IPC defines illegality.          Making

false statement on oath before the court is an offence under

Section 191 IPC and punishable under Section 193 IPC.




                                                                      13
17.While         granting      the    decree      of     divorce,     the   statement         of

respondent no.2 had been recorded in the first as well as in the

second motion as mentioned hereinabove. Period of more than 6

months was given to her to think over the issue. However, she

made a similar statement in the second motion as well.


18.As      per    the   statutory         requirement,          the   purpose    of    second

motion after a period of six months is that parties may make

further      efforts      for    reconciliation            in    order   to     save        their

marriage.         There is also obligation on the part of the court

under Section 23(2) of the Act 1955 to make every endeavour to

bring about a reconciliation between the parties.

                    In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083,

this Court held that conjugal rights are not merely creature of

statute      but    inherent         in   the     very    institution       of   marriage.

Hence, the approach of a court of law in matrimonial matters

should be "much more constructive, affirmative and productive

rather than abstract, theoretical or doctrinaire".                               The court

should not give up the effort of reconciliation merely on the

ground that there is no chance for reconciliation or one party

or   the    other       says    that      there    is     no    possibility      of    living

together.         Therefore, it is merely a misgiving that the courts

are not concerned and obligated to save the sanctity of the

institution of marriage.



                                                                                       14
19.In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1304, this

Court held that mere filing the petition for divorce by mutual

consent    does   not   authorise   the   court   to   make   a   decree   for

divorce. The interregnum waiting period from 6 to 18 months is

obviously intended to give time and opportunity               to the parties

to reflect on their move and seek advice from relations and

friends.     In this transitional period one of the parties may

have a second thought and change the mind not to proceed with

the petition.     The court must be satisfied about the bona fides

and the consent of the parties for the reason that court gets

jurisdiction to make a decree for divorce only on mutual consent

at the time of enquiry.         The consent must continue to decree

nisi and must be valid subsisting consent when the case is

heard. Thus, withdrawal of consent can be unilateral prior to

second motion.     The Court further observed:

           "The 'living separately' for a period of one
          year   should  be  immediately   preceding  the
          presentation of the petition. It is necessary
          that immediately preceding the presentation of
          petition, the parties must have been living
          separately. The expression 'living separately',
          connotes to our mind not living like husband
          and wife. It has no reference to the place of
          living. The parties may live under the same
          roof by force of circumstances, and yet they
          may not be living as husband and wife. The.
          parties may be living in different houses and
          yet they could live as husband and wife. What
          seems to be necesssary is that they have no
          desire to perform marital obligations and with
          that mental attitude they have been living
          separately for a period of one year immediately
          preceding the presentation of the petition. The

                                                                     15
       second requirement that they 'have not been
       able to live together' seems to indicate the
       concept of broken down marriage and it would
       not be possible to reconcile themselves. The
       third requirement is that they have mutually
       agreed that the marriage should be dissolved."
       (Emphasis added)


20.For grant of divorce in such a case, the Court has to be

satisfied   about   the   existence   of   mutual   consent   between   the

parties on some tangible materials which demonstrably disclose

such consent. (Vide: Hitesh Bhatnagar v. Deepa Bhatnagar, AIR

2011 SC 1637).


21.Respondent no.2, who did not change her stand in the second

motion and obtained a sham decree of divorce as alleged by her

asked the criminal court to sit in appeal against the judgment

and decree of the competent Civil Court.              The complaint was

filed before the Magistrate, Jalandhar              while the decree of

divorce had been granted by the District Judge, Ludhiana i.e. of

another district. Therefore, it is beyond our imagination as

under what circumstances a subordinate criminal court             can sit

in appeal   against the judgment and order of the superior Civil

Court, having a different territorial jurisdiction.


22.In the facts and circumstances of the case, the submission

made on behalf of respondent no.2 that the judgment and decree

of a Civil Court granting divorce is null and void and they

continued to be the husband and wife, cannot be taken note of at

                                                                  16
this stage unless the suit filed by             the respondent no.2 to

declare the said judgment and decree dated 20.3.2008             is decided

in her favour.        In view thereof, the evidence adduced by her

particularly    the   record   of   the   telephone    calls,   photographs

attending a wedding together and her signatures in school diary

of the child cannot be taken into consideration so long as the

judgment and decree of the Civil Court subsists.           On the similar

footing,   the contention advanced by her counsel that even after

the   decree   of   divorce,   they   continued   to    live    together   as

husband and wife       and therefore the complaint under            the Act

2005 is maintainable, is not worth acceptance at this stage.


23.In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, this

Court considered the expression "domestic relationship" under

Section 2(f)        of the Act 2005 placing reliance on             earlier

judgment in Savitaben Somabhai Bhatiya v. State of Gujarat &

Ors., (2005) 3 SCC 636 and held that relationship "in the nature

of marriage" is akin to a common law marriage. However,                    the

couple must hold themselves out to society as being akin to

spouses in addition to fulfilling all other requisite conditions

for a valid marriage.

           The said judgments are distinguishable on facts as

those cases relate to live-in relationship without marriage. In

the instant case, the parties got married and the decree of

Civil Court for divorce still subsists.               More so, a suit to

                                                                    17
declare the said judgment and decree as a nullity is still

pending consideration before the competent court.


24.Submissions      made    by   Shri    Ranjit      Kumar   on   the    issue   of

limitation, in view of the provisions of Section 468 Cr.P.C.,

that the complaint could be filed only within a period of one

year from the date of the incident seem to be preponderous in

view of the provisions of Sections 28 and 32 of the Act 2005

read with Rule 15(6) of          The Protection of Women from Domestic

Violence   Rules,    2006    which      make   the    provisions    of    Cr.P.C.

applicable and stand fortified by the judgments of this court in

Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and

Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC

508.


25.In view of the above, we are of the considered opinion that

permitting the Magistrate to proceed further with the complaint

under the provisions of the Act 2005 is not compatible and in

consonance with the decree of divorce which still subsists and

thus, the process amounts to abuse of the process of the court.

Undoubtedly, for quashing a complaint, the court has to take its

contents on its face value and in case the same discloses an

offence, the court generally does not interfere with the same.

However, in the backdrop of the factual matrix of this case,

permitting the court to proceed with the complaint would be


                                                                           18
travesty of justice. Thus, interest of justice warrants quashing

of the same.



26.    The appeal succeeds and is allowed. The impugned judgment

and order dated 9.8.2010 is hereby set aside. Petition filed by

the appellant under Section 482 Cr.P.C. is allowed.                                    Complaint

No. 87/02/09 pending before the Magistrate, Jalandhar and all

orders passed therein are quashed.



             Before   parting   with        the           case,              we    clarify    that

respondent no.2 shall be entitled to continue with her other

cases and the court concerned may proceed in accordance with law

without being influenced by the observations made herein.                                      The

said observations have been made only to decide the application

under Section 482 Cr.P.C. filed by the appellant.




                                      ........................................J.
                                       (P. SATHASIVAM)


                                  .........................................J.
                                  (Dr. B.S. CHAUHAN)
New Delhi
August 23,     2011




                                                                                         19
ITEM NO. 1-A               COURT No.8               SECTION IIB
( For Judgment )



               S U P R E M E   C O U R T   O F   I N D I A
                           RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO.1635 OF 2011 @ SLP (Crl) No.7787/2010

INDERJIT SINGH GREWAL                        ..      Appellant(s)

                           Versus

STATE OF PUNJAB & ANR.                      ..      Respondent(s)




DATE : 23/08/2011      This APPEAL was called
                    on for pronouncement of judgment today.


For Appellant(s)    Mr.Ravindra Keshwarao Adsure, Adv.


For Respondent(s)   Mr.Rohit Kumar Singh, Adv.

                    Ms.Kavita Wadia, Adv.

                           ---

            Hon'ble Dr. Justice B.S. Chauhan pronounced the
       judgment of the Bench comprising Hon'ble Mr. Justice P.
       Sathasivam and His Lordship.

            Leave granted. The appeal is allowed.


           [ Usha Bhardwaj ]                [ Savita Sainani ]
              Court Master                     Court Master


        [ Signed reportable judgment is placed on the file ]




                                                              20



Source :- http://courtnic.nic.in/supremecourt/temp/sr%20778710p.txt

Media report
http://timesofindia.indiatimes.com/india/After-divorce-woman-files-domestic-violence-case-against-ex-husband/articleshow/9726197.cms

SC – Violation of visitation rights of father by mother– contempt of court upheld. Tutoring child Parental alienation acknowledged. But still NO punishment because of being mother. Custody to be decided afresh. Violation of the Mutual consent agreement terms under 13B HMA

Bench: P Sathasivam, B Chauhan

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Contempt Petition (Civil) No. 394 of 2009

IN

Transfer Petition (Civil) No. 195 of 2008

Dr. Ashish Ranjan ...Petitioner Versus

Dr. Anupama Tandon & Anr. ...Contemnors/Respondents JUDGMENT

Dr. B.S. CHAUHAN, J.

1. The instant contempt petition has been filed by the applicant alleging that the consent order dated 3.5.2008 passed by the Lok Adalat held by this Court has willfully and deliberately been violated by the respondents, as it has been ensured by them that the applicant may not reach his son.

2. Applicant herein got married with respondent no.1 on 31.10.2002 at Ajmer (Rajasthan), though both of them had been married earlier and stood separated from their respective spouses after getting divorced. Out of the said wedlock, one male child namely, Kislay was born at Ajmer in 2003. Father of respondent No.1 died on 9.1.2005 and soon thereafter relations between the parties became very strained and the respondent No.1 returned to her mother's place at Ajmer. She also filed FIR No.43 of 2007 with Ajmer Police on 29.3.2007, wherein after investigation the charge sheet was filed on 31.12.2007. The applicant herein, the husband filed H.M.A. Case No.2 of 2008 at Gopalganj (Bihar) on 5.1.2008 seeking divorce.

3. After receiving the summons of the said matrimonial case, the respondent no.1 approached this Court by filing Transfer Petition (Civil) No.195 of 2008 seeking transfer of the said case from Gopal- ganj (Bihar) to the Family Court, Ajmer. At the time of hearing of the transfer petition, this Court vide order dated 31.3.2008 stayed the proceeding in matrimonial case pending at Gopalganj and referred the matter to Lok Adalat for disposal by mutual consent. Before the Lok Adalat, the parties agreed to resolve all their disputes and for that the terms and conditions were reduced in writing. This Court vide order dated 3.5.2008 disposed of the transfer petition on the consent terms resolving all the civil and criminal cases pending between the parties and dissolved their marriage.

4. So far as the issue relating to custody of the child, Kislay, as per the said consent order is concerned, the following clauses are relevant:

".........

(viii) As agreed between the parties, Dr. Anupma Tandon shall have the physical custody and guardianship of the child Master Kislay Ranjan who is at present four and a half years old.

(ix) Dr. Ashish Ranjan and his parents shall have visiting rights to Master Kislay Ranjan who is at present living in Ajmer with his maternal grand-parents. Since Dr. Ashish Ranjan and/or his parents would have to come to Ajmer from Gopalganj at long distance, they would naturally advise about the dates and length of their visits at Ajmer before hand either by telephone or through a letter. (x) In Ajmer, Dr. Ashish Ranjan and/or his parents will visit Master Kislay Ranjan at mutually convenient time(s) in the house where he is living. They will stay with the child for a few hours or as long as the child 3

might wish. Dr. Anupma Tandon stated before the Lok Adalat that while visiting Master Kislay Ranjan, Dr. Ashish Ranjan and his parents will be treated with courtesy and dignity and she would do everything reasonable to facilitate their meeting with the child. It will be open to Dr. Ashish Ranjan and/or his parents to bring suitable gifts for the child. (xi) To begin with, the meetings with the child will be held only in the house where he might be living with his maternal grandparents or his mother. However, as confidence builds up between all concerned, including the child and as the child grows up and he himself wishes to go out with his father or grandparents, it will be open to Dr. Ashish Ranjan and/or his parents to take out the child in the city where he might be living initially for brief periods. (xii) As the child further grows up and in case he expresses his willingness and consent to spend one or two nights with his father Dr. Ashish Ranjan and/or his grandparents, it will be open to Dr. Ashish Ranjan and/or his parents to take the child out from his residence for some period and to keep him with them for one or two nights in the same city. (xiii) As and when the child reaches his teens and in case he is willing to spend some of his holidays or vacations with his father or grandparents away from the place where he might be living with her maternal grandparents or mother, it will be open to Dr. Ashish Ranjan and/or his parents to take the child out of Ajmer or the city he might be living in at that time for as long as the child might wish to stay with them during his holidays or vacations.

(xiv) On each occasion when Dr. Ashish Ranjan and/or his parents take away the child from his guardian, i.e., Dr. Anupma Tandon or his maternal grandparents, it will be their duty and obligation to take full care of the physical, mental and emotional well-being of the child while he remains with them and to return him to his mother/maternal grandparents at the agreed time. As and when the child is taken out from Ajmer, all the expenses of his travel and stay will be borne by Dr. Ashish Ranjan and/or his parents.

(xv) Dr. Ashish Ranjan and/or his parents will be at liberty to speak to Master Kislay Ranjan on telephone at convenient times.

(xvi) All these arrangements insofar as they relate to the child will be subject to the express wish and willingness of the child. No visits to see him or taking him out would be permitted unless the child himself is willing and prepared to meet the father and the grandparents and is willing to go out with them.

................................"

To begin with, the meeting with the child will be held o

5. In order to substantiate his claim, a large number of documents have been placed on record by the applicant, particularly, several returned envelopes seeking visitation rights for the applicant in the year 2008, with endorsement of "refusal" or "the addressee was not available". Copies of E-mails dated 24.6.2008, 17.9.2008 and 23.12.2008 intimating the respondent no.3 in this respect have also been filed. It has also been submitted that telephone calls made by the applicant were not attended by the respondent no.1, as she had the facility of identifying the caller on her landline Telephone Set. The applicant claims that he had gone to Ajmer in July 2008 to meet his son, Master Kislay, but the respondents ensured that he could not meet his son.In view of the fact that the applicant could not receive any response for his proposal to meet the child, the applicant and his parents have to cancel the Ajmer visit scheduled on July 22, 2008. On 10.9.2009, the applicant travelled along with his parents to Ajmer by car to see the child but they found the house of the respondent No.2 locked and could not meet the child.

6. In this contempt petition, notice was issued by this Court on 15.1.2010. The respondent entered appearance. On 5.4.2010, the respondent No.1 appeared in person. After considering the grievances of the applicant, this Court passed the following order :

"In terms of the earlier direction of this Court dated 03.05.2008, we pass the following order:

`It is brought to our notice that at present the Child Master Kislay Ranjan is studying in Sanskriti School, Ajmer. The petitioner Dr. Ashish Ranjan is permitted to visit the above referred school from 12.07.2010 to 23.07.2010. We request the Principal of the School to permit Dr. Ashish Ranjan and his parents to meet the child Master Kislay Ranjan after school hours in his/her chamber or any suitable place within the school premises. We also request the Principal to render all assistance for a conducive atmosphere and send a report to this Court about the behaviour and attitude of the child Master Kislay Ranjan towards his father Dr. Ashish Ranjan.'

Copy of this order be forwarded to the Principal, Sanskriti School, Ajmer, Rajasthan. List in the first week of August, 2010."

7. In pursuance to the aforesaid order, the applicant had gone to Ajmer and was allowed to meet his son at Sanskriti School, Ajmer. The Principal of the said school has also submitted a report. After perusing the same, this Court vide order dated 13.9.2010 directed that both the parties alongwith the child, Master Kislay, would remain present before this Court on 22.10.2010. On the said date, both of us had a long conversation with the child in Chambers and tried to know his mind and understand his views about the applicant. We came to the conclusion that the matter required full hearing. Hence, the matter came for final hearing.

8. Shri Prashant Bhushan, learned counsel appearing for the applicant, has submitted that there is ample evidence on record to show that the consent order passed in the Lok Adalat has been violated by the respondents. The mind of the child has been poisoned/polluted and the child does not have any inclination towards his father because of the tutoring by the respondents. The child had been taught not to pick up the phone. Respondent No.2 is quite aged, seriously ill and it was one of the main grounds seeking transfer of the matrimonial case pending before Gopalganj Court (Bihar) by the respondent no.1. It is not in the interest/welfare of the child to continue his education at Ajmer, as the respondent No.1 lives and is working in U.P. Institute of Medical Sciences at Saifai, Dist. Etawah (U.P.). The Court must ensure the compliance of the right of visitation to his son given to the applicant.

9. Shri V.K. Shukla, learned counsel appearing for the respondents, has fairly conceded that the applicant has right of visitation and must be concerned about the welfare of the child. However, the child is getting the best education at Ajmer, which should not be disturbed. As the child himself is not inclined to talk to the applicant, he cannot be forced to have any communication/meeting with the applicant. None of the respondents has tutored the child. The applicant has filed a writ petition No. 155 of 2009 before this Court seeking the relief, which has been sought in this petition, and the same stood dismissed vide order dated 29.9.2009. Therefore, this petition itself is not maintainable and, thus, is liable to be dismissed.

10. We have considered the rival submissions made by the learned counsel for the parties and perused the record. This matter has been heard by us and we had an opportunity to talk to the parties, as well as to the child. We are of the view that the applicant could not get the benefit of his visitation right under the final order passed by this Court on 3.5.2008, and, to certain extent, the respondents are responsible for tutoring the child as the conversation between the applicant and the child reveals many things which a child is not supposed to know/understand at the tender age of 2-1/2 years. Even in conversation with us, the child, Master Kislay, has narrated many things which could not be in his personal knowledge and which he could not say by his own memory.During our conversation with the child we could clearly note that the child has been tutored by the respondents to make him completely hostile towards his father.

11. The submission made by Shri Shukla, learned counsel for the respondents, that the writ petition filed by the applicant seeking the same relief stood dismissed and thus, no relief can be granted to him, is preposterous. It stood dismissed more than 15 months ago, wherein the applicant had appeared in person. The niceties of law cannot come in the way of this Court while deciding an issue of such a delicate nature. More so, the writ petition could not be maintainable for the relief sought herein.Be that as it may, it is settled legal proposition that a party cannot be rendered remediless. (See: Rameshwar Lal v. Municipal Council, Tonk & Ors. (1996) 6 SCC 100).

12. In Mohammad Idris & Anr. v. Rustam Jehangir Bapuji & Ors., AIR 1984 SC 1826; and Y.N. Gangadhara Setty & Ors. v. Jaya Prakash Reddy, MD, Karnataka Cooperative Milk Products Federation, (2007) 14 SCC 434, this Court held that even undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions to remedy and rectify the consequences of actions in violation of its orders.

13. In Delhi Development Authority v. Skipper Construction Company (P) Ltd. & Anr., AIR 1996 SC 2005, this Court held as under:

"There is no doubt that the salutary rule has to be applied and given effect to by this court, if necessary, by over-ruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The Court must ensure full justice between the parties before it."

14. Thus, it is evident from the above that a mere technicality cannot prevent the Court from doing justice in exercise of its inherent powers. The power under Article 142 of the Constitution can be exercised by this Court to do complete justice between the parties, wherever it is just and equitable to do so and must be exercised to prevent any obstruction to the stream of justice.

15. In Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, this Court (Three-Judge Bench) considered the nature of custody of a minor under the provisions of Guardians and Wards Act, 1890 and application of doctrine of res-judicata/estoppel in respect of the same and held as under:

"The appellant's argument based on estoppel and on the orders made by the court under the Indian Divorce Act with respect to the custody of the children did not appeal to us. All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation."

16. The aforesaid judgment was re-considered by this Court (Two- Judge Bench) in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, and after quoting the ratio of the said judgment, held as under: "21......However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the Family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting a new case before the court. It must be established that the previous arrangement was not conducive to the child's welfare or that it has produced unsatisfactory results....."

17. In Jai Prakash Khadria v. Shyam Sunder Agarwalla & Anr., AIR 2000 SC 2172; and Mausami Moitra Ganguli v. Jayant Ganguli, AIR 2008 SC 2262, this court held that it is always permissible for the wards to apply for the modification of the order of the court regarding the custody of the child at any stage if there is any change in the circumstances.(See also Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409)

18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the "moral and ethical welfare of the child must also weigh with the court as well as his physical well- being". The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. (vide Gaurav Nagpal v. Sumedha Nagpal, AIR 209 SC 557).

19. Statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. (vide Elizabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3; Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6; Nil Ratan Kundu & Anr. v. Abhijit Kundu, (2008) 9 SCC 413; Shilpa Aggarwal v. Aviral Mittal & Anr. (2010) 1 SCC 591; and Athar Hussain v. Syed Siraj Ahmed & Anr., (2010) 2 SCC 654).

20. In addition to the statutory provisions of the Contempt of Court Act, 1971 the powers under Articles 129 and 142 of the Constitution are always available to this court to see that the order or undertaking which is violated by the contemnor is effectuated and the court has all powers to enforce the consent order passed by it and also issue further directions/orders to do complete justice between the parties. Mutual settlement reached between the parties cannot come in the way of the well established principles in respect of the custody of the child and, therefore, a subsequent application for custody of a minor cannot be thrown out at the threshold being not maintainable. It is a recurring cause because the right of visitation given to the applicant under the agreement is being consistently and continuously flouted. Thus, doctrine of res-judicata is not applicable in matters of child custody.

21. If the instant case is considered in totality taking into consideration the above referred judgments, we are of the view that in the facts and circumstances of the case, inference can be drawn that the rights of visitation given to the applicant by this court vide order dated 3.5.2008 stood completely frustrated and the respondents have ensured that the applicant may not reach his son and all attempts made by the applicant in this regard stood futile. The mind of the child has been influenced to such an extent that he has no affection/respect for the applicant. In such a fact-situation, we do not hesitate in holding that the respondents have deliberately and willingly violated the terms of the consent order and are guilty of committing the contempt of this court. However, imposing any punishment on the respondents would not serve any purpose, nor it would serve in a better way to the welfare of the child, Kislay. The respondent No.1 is serving at Saifai, Dist. Etawah (U.P.) at a distance of about 500 Kms. from Ajmer and is certainly not in a position to take care of the child, Kislay. The respondent No.2 is quite aged lady who herself has been suffering from various ailments. Therefore, interest/welfare of the child, Kislay is not being taken care of at all. A child of this age may not be able to learn family values, the importance of bonding or have interpersonal relationships, etc. if he gets inadequate opportunities for social inaction. It is necessary for a child that he should be in regular contact of the non-custodial parent also.

22. Be that as it may, undoubtedly, the order dated 3.5.2008, so far as the custody of the child, Kislay, is concerned, has proved unworkable as the respondents succeeded in frustrating the same totally. The child has been tutored by the respondents to the extent that he has no inclination towards the applicant father. The respondents have ensured that all efforts of the applicant or his parents to meet the child turned futile. The child, Kislay, has been instructed not to pick up the phone, so that even by chance he may not hear the voice of the applicant or his parents. In such a charged/hostile atmosphere, it is beyond one's imagination that the other terms/conditions incorporated in the order dated 3.5.2008, that the applicant may take out the child to another city; or stay with the child for few nights in the same city, would be complied with. More so, further, clause no.(XV) of the order, that the applicant or his parents would be at liberty to talk to the child on telephone has never been observed as all attempts made by the applicant in this regard have failed. The child, Kislay, has been tutored by the respondents and he has adopted an hostile attitude towards the applicant. In such a fact-situation, where circumstances have substantially changed subsequent to the order dated 3.5.2008, due to non- compliance of the terms of compromise order, the applicant is fully justified seeking review/modification of the said order. The issue raised herein being a pure question of fact requires to be examined by an appropriate forum taking into consideration all the factual and legal aspects.

23. Thus, in view of the above, we dispose of the contempt petition giving liberty to the applicant to approach the appropriate court/forum for seeking custody of the child, Kislay, or any other appropriate relief in this regard. In case, such a petition is filed, the court concerned is requested to proceed and dispose of the same in accordance with law, without being influenced by the consent order dated 3.5.2008 or dismissal order of the writ petition dated 29.9.2009 passed by this Court regarding the custody and visiting rights of the parties towards the child, most expeditiously.Needless to say that the court concerned would proceed with the case, if any, without taking note of any observation made hereinabove in this judgment as we have expressed no opinion on merit on the issue of custody.

....................................J.

(P. SATHASIVAM)

...................................J.

(Dr. B.S. CHAUHAN)

New Delhi;

November 30, 2010

18

http://www.indiankanoon.org/doc/436580/

Delhi HC orders contempt case against father of girl for resiling from mutual consent divorce agreement of daughter after extorting the agreed amount

The Delhi High Court has initiated contempt proceedings against the father of a Germany-based woman for backing out from a mutual consent divorce agreement in exchange of Rs 12 lakh. In March 2010, the woman had moved the Delhi High Court against her husband, charging him with domestic violence.

Her Delhi-based father filed a case of domestic violence and dowry demand against his bed-ridden daughter's husband.

Later, she agreed for a mutual-consent divorce for Rs 12 lakh.

Sunny and Sheila (names changed) married in 2002 in Delhi. During her stay in Germany, Sheila developed multiple sclerosis.

In 2008, she filed cases in Germany against her husband.

At present, the couple lives separately in Germany.

Prabhjit Jauhar, counsel for Sunny, in his petition said: "Sheila registered false complainants with the German court. Later German investigative authorities found that those complaints were false."

Jauhar told the court that Sheila was not summoned, as the German court noted she was suffering from an acute disease.

In March 2010, Sheila, through her father, informed the Delhi High Court's Mediation Conciliation Centre, that a divorce by mutual consent should be agreed upon for a sum of R12 lakh. She also gave her consent to quash the FIR against her husband.

However on November 1, Sheila's father said he was not willing to comply with the terms of agreement signed in March.

"It is a clear breach of undertaking given to the court and amounts to contempt," Jauhar submitted in court.

Justice GS Sistani said: "Respondent (father of the woman) has willfully violated the terms of settlement agreed upon. Issue notice to show cause, as to why contempt proceedings should be not initiated."

Sunny, in his petition, alleged that he has already deposited R12 lakh with the registry department of the High Court in March 2010.

The court has directed Sheila's father to be personally present in court on the next date of hearing.

http://www.hindustantimes.com/HC-orders-contempt-case-against-man/Article1-627757.aspx

SC- Divorce cannot be purchased by husband. But can only wife sell it at her price ?

                                               REPORTABLE
                  IN THE SUPREME COURT OF INDIA
                   CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NOS. 8196-8197 OF 2010
           (Arising out of S.L.P. (Civil) Nos.5289-5290 of 2010)

Sanjeeta Das                                                     ....Appellant

                                    Versus

Tapan Kumar Mohanty                                             ....Respondent

                                JUDGMENT

AFTAB ALAM, J.

1. Leave granted.

2. The order of a division bench of the Orissa High Court that is before us in this appeal, though passed in a judicial proceeding, appears to us to be completely alien to the law. The relevant facts to see the impugned order in perspective may be stated thus.

3. The respondent and the appellant were married in accordance with the Hindu religious rites. About three years after the marriage, he filed a petition (Civil Proceeding No.136 of 1997) before the Family Court, Rourkela for 2

dissolution of his marriage with the appellant on grounds of cruelty and desertion [clauses (ia) and (ib) of section 13(1) of the Hindu Marriage Act, 1955]. The appellant strongly resisted the grounds taken by the respondent for dissolution of their marriage and took the plea that in reality she had been deserted and subjected to cruelty by the respondent. For the purpose of the present appeal, there is no need for us to go into the details of the allegations made by the respondent in his petition or the counter-allegations made against him in the written statement filed by the appellant. Suffice it to note that on the basis of the evidences adduced before it, the Family Court in its judgment dated October 29, 2005 arrived at findings against the respondent on both the issues of desertion and cruelty.Invoking, however, the provision of section 23A of the Act, it directed the appellant to resume cohabitation with her husband, the respondent, within 3 months from the date of the judgment. The operative order of the Family Court is as follows: "In the ultimate analysis, while rejecting the prayer of the petitioner seeking for grant of dissolution of his marriage with the respondent by a decree of divorce, I pass a decree of restitution of the conjugal life of the parties. Accordingly, the respondent-wife is directed to restitute her conjugal life with the petitioner-husband within 3 months, hence on the event of the respondent coming to the fold of the petitioner to restitute her conjugal life with the latter, he shall co-operate with the former and that consequent upon success of the restitution of conjugal life between the parties, the impact/gravity of the criminal proceeding u/s. 498A IPC started against the petitioner and his family members at the instance of the respondent shall be loosen"

4. Against the judgment and order passed by the Family Court, the respondent preferred appeal (MATA No.59 of 2005) before the Calcutta High Court. The appeal was disposed of by a division bench of the High Court by order dated September 2, 2009. From that order it appears that the respondent filed an affidavit before the court declaring his willingness to pay a sum of Rs.10,00,000.00 (rupees ten lakhs only) as life term maintenance of the appellant and for the expenses of marriage of their daughter Kumari Ayushi Mohanty (Richi), in consideration of the dissolution of his marriage with the appellant by a decree of divorce and compounding of a criminal case instituted against him by the appellant. The respondent further stated in the affidavit that he would pay the sum of Rs.5,00,000.00 (rupees five lakhs only) within 4 months from the date of passing of the decree of divorce and the balance amount of Rs.5,00,000.00 (rupees five lakhs only) in 4 equal installments spread over a period of 2 years from the date of the passing of the decree of divorce. The High Court in its order dated September 2, 2009 simply paraphrased the statements made in the affidavit filed by the respondent and made it the order of the court. The order dated September 2, 2009 was later modified by order dated November 20, 2009 to the further advantage of the respondent. It was clarified that the payment of Rs.10,00,000.00 (rupees ten lakhs only) was not only for the lifetime maintenance of the appellant but also for the maintenance of the daughter, Kumari Ayushi Mohanty (Richi) till she got married besides the expenses that might be incurred for her marriage.

5. These two orders passed by the High Court, by which it purported to grant a decree of divorce for dissolution of the respondent's marriage with the appellant are now before us in appeal and plainly speaking we are unable to put any meaning to the order of the High Court. The marriage between the respondent and the appellant was admittedly solemnized in accordance with the Hindu religious rites. A Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce for consideration, with or without the consent of the other side.

6. Leaned counsel appearing for the respondent urged us not to interfere in the matter submitting that the respondent and the appellant had lived together barely for four months. He stated that the marriage had taken place on April 29, 1994 and from August 24, 1994 they are living separately. He also tried to argue that the order of the High Court was passed with the consent of the parties and for that reason also this Court should not interfere in the matter. We are not prepared to accept the submission for a moment. First, there is nothing to indicate that the order was passed with the consent of the appellant. All that is said in the order is as under: "On consideration of such affidavit and the submission of the learned counsel appearing for the parties, we dispose both these appeals with the following directions" (Emphasis added)

7. The affidavit referred to in the order is the one filed by the respondent and consideration of submission of counsel for the parties does not indicate that the appellant had given her consent for dissolution of her marriage with the respondent on payment of Rs.10,00,000.00 (rupees ten lakhs only). Secondly, and more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B of the Act.

8. In the light of the discussions made above, we find the order of the High Court completely unsustainable. It is set aside and the appeal against the judgment and order passed by the Family Court is restored to its file. The High Court must now hear and dispose of the appeal along with the connected appeal afresh, in accordance with law. Since the matter is somewhat old, the High Court may give the appeals some priority and dispose them of at an early date.

9. In the result, the appeals are allowed with costs, quantified at Rs.15,000.00 (rupees fifteen thousand only).

.....................................J (AFTAB ALAM)

.......................................J (R.M. LODHA)

New Delhi

September 22, 2010.

SOURCE - http://judis.nic.in/supremecourt/chejudis.asp