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TRANSFER PETITION IN SUPREME COURT: JUSTICE REIGNS SUPREME

TRANSFER PETITION IN SUPREME COURT : A CURIOUS CASE 

Hon`ble Supreme Court in Vennangot Anuradha Samir vs Vennangot Mohandas Samir  passed an out of turn judgment wherein JUSTICE IS SEEN BEING DELIVERED WITH OPEN EYES

JUDGEMENT OVERVIEW

The petitioner and the respondent entered into matrimony in April 2010, adhering to Hindu Vedic Rites. At the time of their marriage, the respondent-husband was a bachelor, while the petitioner-wife was a divorcee. Their union blossomed from a love story that began when they first connected in October 2006. However, by 2013, misunderstandings arose, leading the petitioner to leave their shared home. Subsequently, in 2015, the respondent-husband filed a suit for divorce under Section 13(1)(1a) of the Hindu Marriage Act, citing the petitioner’s alleged acts of cruelty after marriage. It’s worth noting that the petitioner currently resides in Hyderabad with her parents. Consequently, she filed an application before the court, seeking the transfer of the divorce case pending before the Family Court Bombay to the Family Court in Hyderabad. The transfer petition was scheduled for hearing on August 28, 2015. At the parties’ request, the matter was referred to the Supreme Court Mediation Centre, where a Settlement Agreement was eventually reached on October 26, 2015.

Transfer Petition in Supreme Court

As per the Settlement Agreement, the respondent-husband committed to paying Rs. 12,50,000/- (Twelve Lakhs Fifty Thousand) as full and final alimony, maintenance, or any other claim to the petitioner. This amount was to be remitted via a bank draft in the name of the Registrar, Supreme Court, upon the issuance of the decree of divorce by mutual consent. On November 6, 2015, the case was re-listed alongside the office report and the Settlement Agreement. Subsequently, an application was filed under Section 13B of the Hindu Marriage Act, seeking to treat the pending divorce petition before the Family Court, Bombay as an application under the same section. The petitioner-wife, who was grappling with a life-threatening illness, urgently required funds for medical treatment and self-care. On November 17, 2015, the case was adjourned at her request to allow her to submit additional documents supporting her health condition. The medical certificate revealed a breast lump with high suspicion of malignancy. Doctors recommended immediate surgery and chemotherapy spanning 6 to 8 cycles of adjuvant, with each cycle estimated to cost approximately Rs. 50,000/-.

 

Considering the admitted facts, it is evident that the petitioner urgently requires funds for breast cancer treatment. Consequently, it cannot be dismissed that she agreed to a settlement for dissolution of marriage in order to secure the necessary financial support. This raises the question: Is it justifiable for the court to grant a divorce decree based on a settlement when the wife is battling breast cancer and urgently needs funds for her treatment?

Hindu marriage, a sacred and profound union, transplants the wife into her husband’s household, granting her a new life. It intertwines their existence—bone to bone, flesh to flesh. For a Hindu wife, her husband is akin to a deity, and her life revolves around selfless service and unwavering dedication to him. She shares not only their life and love but also their joys, sorrows, troubles, and tribulations, becoming an integral part of his journey.

Colebrooke, in his book “Digest of Hindu Law Volume II”, eloquently describes the wife’s status: “A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts. Whether she ascends the funeral pyre after him or survives for the benefit of her husband, she remains a faithful wife.” Additionally, Colebrooke cites the Mahabharata, emphasizing: “Where females are honored, there the deities are pleased; but where they are dishonored, all religious acts become fruitless.” These profound statements underscore the elevated position accorded to Hindu women by Shastric law. The study of Hindu Law and various religious texts leaves no room for dispute: post-marriage, the husband bears the duty not only to provide food and clothing but also to safeguard his wife from calamities, ensuring her health and safety. In the unique circumstances of this case, the instant settlement—a contract to dissolve the marriage—requires the court’s scrutiny to ascertain its legality and validity under the law’s discerning gaze.

Upon examining the case’s facts and the unfolding events, it appears that the petitioner-wife consented to mutual divorce under the condition that the respondent-husband would pay her Rs. 12,50,000/- as a full and final settlement. The petitioner-wife’s medical condition, which compelled her to agree to mutual consent divorce, raises a crucial question: Is the consent obtained from her truly free, as required by law for granting a decree of divorce by mutual consent?

Section 13-B of the Hindu Marriage Act provides for divorce by mutual consent. Here are the key provisions:

  1. Petition for Dissolution: Both parties to a marriage can jointly present a petition for dissolution of marriage by a decree of divorce. This applies whether the marriage occurred before or after the commencement of the Marriage Laws (Amendment) Act, 1976. The grounds include living separately for one year or more and mutual agreement to dissolve the marriage.
  2. Timeframe: The motion for mutual consent divorce can be made no earlier than six months after presenting the initial petition and no later than eighteen months after that date. If the petition remains unwithdrawn during this period, the court, after due inquiry, may pass a decree of divorce, effective from the date of the decree.

Section 23 imposes a duty upon the court to meticulously record its satisfaction before granting a decree in any suit or proceeding. Notably, Section 23(1)(bb) specifically states:

“When a divorce is sought on the ground of mutual consent, such consent must not have been obtained by force, fraud, or undue influence.”

This provision was extensively discussed by the court in the case of Sureshta Devi vs. Om Prakash (1991) 2 SCC 25. The court emphasized two critical points:

  1. Mutual Consent: For a decree of divorce, there must be genuine mutual consent when the parties approach the court.
  2. Bona Fides and Consent: The court must satisfy itself about the bona fides and the authenticity of the parties’ consent. If mutual consent is absent during the inquiry, the court lacks jurisdiction to grant a divorce decree. Contrarily, if the court were to proceed otherwise, it could potentially issue a divorce decree even against one party’s consent, disregarding the other’s wishes1.

The assertion that such a decree cannot be regarded as a decree by mutual consent holds weight. Let’s delve into the legal aspects.According to the Indian Contract Act, consent is considered free when it is not influenced by “undue influence,” as defined in Section 16 of the Act. “Undue influence” occurs when one party dominates the will of the other due to their existing relationship, thereby gaining an unfair advantage.Another relevant doctrine is the “Pre-existing duty doctrine.” Under this principle, if a party is already bound by a pre-existing duty to perform, any modification of the contract lacks consideration and becomes voidable. In simpler terms, performing an obligation one is already bound to does not constitute valid consideration for a promise. Similarly, promising to fulfill an existing duty adds nothing to the obligation already in place.Applying this principle to the present case, the respondent-husband has a pre-existing duty to care for the health and safety of the petitioner-wife. It is incumbent upon him to provide facilities for her treatment. If he diligently fulfills this duty, it aligns with the legal framework and the principles of mutual consent in divorce proceedings.

In the present case, the respondent-husband’s promise in the settlement agreement—something he is already duty-bound to do—does not constitute valid consideration. Given the unique circumstances, The Hon`ble SC issued the following order:

  1. The transfer petition for moving the matrimonial suit (petition No. A-642 of 2015) pending before the Family Court at Bombay, Maharashtra, to the Family Court at Hyderabad, is allowed. The transferor court shall promptly transmit the case records to the transferee court.
  2. The respondent-husband shall immediately pay Rs. Five Lacs (Rs. 5,00,000/-) out of the total Rs. 12,50,000/- to the petitioner-wife. This amount is intended for her treatment and other medical expenses.
  3. Once the petitioner is fully cured from her illness or within six months, whichever occurs earlier, the Family Court at Hyderabad—where the divorce petition is transferred—shall consider the case along with any fresh application filed by the parties under Section 13B for divorce by mutual consent. After fulfilling all formalities, the Family Court at Hyderabad will dispose of these petitions in accordance with the law, ensuring a fair hearing for both parties.