Family Court Appeal No. 61 of 2010. Case: Prakash Alumal Kalandari Vs Mrs. Jahnavi Prakash Kalandari. High Court of Bombay (India)
| Case Number | Family Court Appeal No. 61 of 2010 |
| Counsel | For Appellant: S. P. Nanavati, Adv. and For Respondents: Anil Menon with S. B. Shetty, Adv. |
| Judges | A. M. Khanwilkar, J. and Mrs. Mridula Bhatkar , J. |
| Issue | Hindu Marriage Act (25 of 1955) - Sections 13B, 23; Family Courts Act (66 of 1984) - Section 21(2)(c); Family Courts (Maharashtra) Rules (1987) - Rule 31; Evidence Act (1 of 1872) - Section 115 |
| Citation | AIR 2011 Bom 119 |
| Judgement Date | May 06, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
A. M. Khanwilkar, J.
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This appeal takes exception to the Judgment and Decree passed by the Family Court No. 3, Pune dated 31st March, 2009 in Petition No. A-877/2007. The respondent/wife filed Petition for a decree of divorce on the ground of cruelty. The said Petition was contested by the appellant/ husband by filing written statement and counter claim. The appellant also prayed for custody of children.
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The marriage between the appellant (husband) and respondent (wife) was solemnized on 12th August, 1993 at Pune as per the Hindu Vedic rites. After their marriage, they lived and cohabited together initially at Moscow, then at France and lastly at Pune. Two children are born out of the said wedlock namely; daughter Lavanya born on 22nd June, 1995 and son Rahul born on 11th January, 1999. The children are in the care and custody of the respondent mother. The parties started living separately since June, 2006. Since then, there has been no cohabitation between them.
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During the pendency of the abovesaid Petition, the parties decided to take divorce by mutual consent. Accordingly, Consent Terms were executed and signed by both of them on 6th October, 2008, which were placed on record before the Family Court being Exhibit 71. The parties thereafter jointly filed application at Exhibit 72 to convert the Petition for divorce into joint Petition for divorce by mutual consent. As per the Consent Terms, the appellant had agreed that the custody of both the children would remain with the respondent wife. The respondent wife on the other hand, agreed to give access of both the children to the appellant during the weekend on every Sunday at the designated place and time and during the Diwali and Christmas vacations every day at the same venue and same time. Insofar as summer vacation, temporary custody of both the children was to be given to the appellant husband for the first half of the vacation when he could take the children away from Pune for vacation under intimation to the respondent wife. The parties also agreed that they would jointly take decision in respect of education and other activities of the children. The appellant agreed to pay maintenance of Rs. 5,000/- per month for each child with increase at the rate of 15% every two years. The respondent wife waived her claim of maintenance and alimony and her streedhan. The respondent wife also agreed to cooperate with the appellant husband for the transfer of shares, properties-movable and immovable of the respondent in Company KAPEXL Healthcare Private Limited. Besides, both parties agreed to withdraw all the criminal and civil proceedings filed against each other.
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After filing of Consent Terms recording the above arrangement, the hearing was deferred for some time. The Advocate for the appellant thereafter withdrew his Vakalatnama and on 16th February, 2009, the appellant filed application Exhibit 80 to withdraw his consent given on the application Exhibit 71 to grant divorce by mutual consent. The sole reason mentioned in this application is that the respondent wife failed to comply with her obligation to provide access of the children to the appellant husband. He has asserted that he was therefore withdrawing his consent, keeping in mind the paramount interest and welfare of the children. The said application Exhibit 80 was resisted by the respondent wife by filing reply Exhibit 81. According to the respondent, she never refused to grant access of children to the appellant. Whereas, the appellant was arrested in connection with various criminal matters and could not avail of access during the relevant period, as he was in jail. In substance, she refuted the allegations in application Exhibit 80 that she failed to comply with any of the terms of Consent Terms executed between the parties. She has also asserted that the children were not keen on meeting the appellant and refused to accompany the appellant, which fact was known to the appellant. She also asserted that the appellant was not paying maintenance amount regularly and was in arrears. She also brought on record that after execution of the Consent Terms, she facilitated disposal of criminal cases filed against the appellant husband being case No. 560/2007 for offence under Section 498-A of the Indian Penal Code and Case No. 66/2008 for offence of theft. Besides, as per the Consent Terms, she also informed the Police Station of Hadapsar Police Station to withdraw all pending complaints against the appellant.
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Considering the stand taken by the rival parties, the Family Court framed points for determination, amongst others, whether the application filed by the appellant Exhibit 80 to withdraw the consent recorded in the Consent Terms should be allowed and whether decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'), should be passed.
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Dealing with the first point, the Family Court took the view that the appellant cannot be allowed to withdraw his consent in the fact situation of the present case. The learned Judge held that the only ground pressed into service by the appellant justifying withdrawal of consent for passing decree of divorce by mutual consent, was untenable and devoid of merits. The learned Judge relying on the case law pressed into service by the parties took the view that the appellant cannot be allowed to withdraw his consent and instead, the Consent Terms executed between the parties ought to be taken on record and decree of divorce by mutual consent on the basis of the said Consent Terms was inevitable.
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In the present appeal, the view so taken by the Family Court has been assailed. According to the appellant, since the Petition was one under Section 13B of the Act, the same could be taken forward only if both the parties continued to support the same till the date of the decree. Whereas, even if one party to the said application were to resile from or withdraw his/her consent, the Court cannot get jurisdiction to pass a decree of divorce by mutual...
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