A.R. Joshi, J.
1. Heard rival submissions at length on this Appeal preferred by the present Petitioner-wife challenging the order below Exh. 1 dated 30.7.2014 by which the application Exh. 28 preferred by the present respondent-husband was granted by the Judge, Family Court No.5, Mumbai. At this juncture, it must be mentioned that the said application Exh. 28 was Interim Application No. 71 of 2014 presented by the present respondent-husband before the Family Court in the Petition No. A-685 of 2013. As the issue involved in the present Appeal is validity or otherwise of the order passed granting divorce to the parties, the present Appeal is being disposed of at the admission stage itself.
2. Without going into much details as to on what basis the matrimonial dispute arose between the parties, suffice it to say that the present respondent-husband had filed a Marriage Petition bearing No. A- 685 of 2013 for decree of divorce on the ground of cruelty as per Section 13(1)(i-a) of the Hindu Marriage Act, 1955. During the pendency of the said petition, the matter was referred for mediation and was brought before the Judge-Mediator. Apparently, the matter was settled between the parties by drawing a sort of Mediation Settlement Terms on 14.2.2014. Admittedly, the said Mediation Settlement Terms were signed by the husband and wife and their respective parents. The said Settlement Terms were also verified by the Judge-Mediator. The said Settlement Terms are the basis for the present respondent-husband to prefer Interim Application No. 71 of 2014 being Exh. 28 asking for the orders from the Family Court to honour the said Settlement Terms and put to an end to the matrimonial disputes between the parties in terms of the said settlement.
3. A detailed order was passed by the Family Court Bandra, Mumbai on the said Interim Application Exh. 28. The said order was passed on 30.7.2014. The date of the said Settlement Terms and the date of the application and the order from the Family Court in view of the said Settlement Terms and date of final order which is impugned, are of much significance.
For the sake of ready reference, the said dates can be mentioned, inasmuch as the Mediation Settlement Terms were arrived at on 14.2.2014, Application No. 71 of 2014 Exh. 28 was preferred on 1.3.2014 and the said application was granted dissolving the marriage between the parties on 30.7.2014. If it is considered that the said Settlement Terms arrived at before the Mediator are to be acted upon and to be given effect as if the same is application under Section 13B of the Hindu Marriage Act, still the period of six months had definitely not elapsed when the impugned order was passed on 30.7.2014.
4. Considering the above basic factual position, now coming to the arguments advanced on behalf of the present petitioner-wife, it is to be mentioned that apparently the petitioner-wife had not acted in terms of the said Settlement Terms mainly on the ground that there was much emotional pressure on her at the time of signing the said Mediation Settlement Terms. In order to appreciate this argument, the crux of the said Settlement Terms can be mentioned with advantage. In para 1 of the said Settlement Terms, it was specifically mentioned that permanent custody of daughter to be given by the respondent-wife to the petitioner-husband on 17.2.2014. At the end of para no.1, it is mentioned to the following effect:
Â âThe respondent-wife shall have right of access which shall be resolved between the petitioner-husband and respondent-wife. The petitioner-husband shall take absolute care of the daughter Miraaya.â
5. In our considered view, the words in paragraph 2 of the said Settlement Terms are of much significance which read thus:
âParties have agreed for divorce by mutual consent. An application for conversion of the petition into a petition for divorce by mutual consent shall be jointly submitted by both the spouses.â
6. In paragraph 3 of the said Settlement Terms it is specifically mentioned that the petitioner shall pay Rs. 1 crore and Rs.11 lakhs to the respondent-wife towards her alimony and amount shall be deposited in the Court by way of Demand Draft in the name of Principal Judge, Family Court, Mumbai and the respondent-wife shall be entitled to withdraw the said amount from the Court after divorce decree. At the end of the said Settlement Terms, it is again reiterated that the amount shall be deposited in the Court on 18.2.2014 and on the same day, application for conversion of the petition into a petition for divorce by mutual consent shall be filed. The words here are very specific as it is agreed between the parties that the application for conversion of the petition into a petition for divorce by mutual consent, was âmustâ to be filed as the word âshallâ is used.
7. Bearing in mind the above factual position, it must be mentioned that in the present case at the end, there was no such application filed either for converting the original application preferred by the husband for divorce on the ground of cruelty or a separate independent application under Section 13B of the Hindu Marriage Act, 1955. In our considered view, this factual position has been overlooked by the Family Court while allowing the application Exh. 28 preferred by the respondent-husband.
8. It must be mentioned that the period of six months contemplated by law for giving effect to the application filed by consent under Section 13B of the Hindu Marriage Act, 1955, is with some specific logic as to give a room to either party to withdraw from the consent if such necessity occurs within six months from the lodging of the application. Ofcourse whether or not to allow any party to withdraw its consent within the said period of six months, is a question of fact and hardly parity on facts can be taken recourse to. In the present case, the learned counsel for the respondent-husband had placed reliance on the decision in the case of Mr. Prakash Alumal Kalandari Vs. Mrs. Jahnavi Prakash Kalandari reported in AIR 2011 Bom. 119.
Much emphasis was placed on the ratio propounded by the above authority of the Division Bench of this Court and it is argued on behalf of the respondent husband that the consent was granted by any party to the marriage, for dissolution of the marriage in view of the terms and conditions of the settlement, either party is not allowed to repudiate its consent. This is more so when another party had acted on the consent terms. We have carefully gone through the said cited authority (Mr Prakash Kalandari Vs. Mrs Jahnavi Prakash Kalandari) (supra) it must be mentioned that under the peculiar facts of that matter the Division Bench of this Court came to the conclusion that it was not within the rights of then appellant husband to withdraw his consent for getting divorce under section 13-B of the Hindu Marriage Act. In our considered view, the specific facts of that matter prompted the Division Bench to uphold the order of the Family Court rejecting the application of the husband and not allowing him to withdraw his consent. What the Division Bench has observed was to the effect that the wife had already acted upon the consent terms arrived at and had already withdrawn her criminal cases filed against the husband. Moreover, she had also forgone her right of maintenance and as such the Family Court and also the Division Bench came to the conclusion that the ground mentioned by the husband for withdrawal of his consent cannot sustain. The said ground was to the effect that access to the small child was not given to the husband and as such that had prompted him to withdraw his consent for dissolution of marriage by way of compromise under the provisions of Section 13-B of the Hindu Marriage Act. Moreover, in that matter the Family Court and also the Division Bench of this Court came to the conclusion that the husband could not have the access of the child as during the relevant period he was in jail custody in some criminal matter and as such it was not the fault of the wife for not giving access of the child to the husband.
9. At the cost of repetition, it must be mentioned that the decision in the above referred case will not come to the rescue of the present respondent husband as the present case at hand is required to be dealt with in different fact situation and more specifically in the light of the factual position that initially petition of the husband, present respondent, was for divorce on the ground of cruelty whereas initially it was opposed by the present appellant wife but during the mediation process some consent terms were arrived at. Moreover, it is a factual position that no application under Section 13-B of the Hindu Marriage Act was preferred by the parties and at the cost of repetition it must be said that it was the condition imposed in the said consent terms in paragraph 2. Moreover, the impugned order allowing the application Exh.28 of the present respondent-husband and dissolving the marriage between the parties do not in any way solve the aspect of access of the child to the wife.
10. Otherwise also in the above cited decision in Mr Prakash Kalandari Vs. Mrs Jahnavi Kalandari (supra) there are specific observations of the Hon'ble Apex Court, quoted by the Division Bench of this Court. In fact, those observations of the Apex Court were from the decision in the case of Smt.Sureshta Devi v. Om Prakash reported in MANU/SC/0718/1991: 1SCR 274. In those observations of the Hon'ble Apex Court the provisions of Section 13-B of the Hindu Marriage Act were discussed with much emphasis on the aspect as to the period of six months. The observations of the Hon'ble Apex Court in paragraphs 13 to 15 in the case of Smt.Sureshta Devi V. Om Prakash (supra) and which are reproduced in the case of Mr Prakash Kalandari Vs. Mrs Jahnavi Kalandari (supra) are reproduced hereunder with advantage:
"13) From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was 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 spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decrees. This appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties .... if the petition is not withdrawn in the meantime, the court shall ..... pass a decree of divorce ...." What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
14) Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. [See (i) Halsbury laws of England, Fourth Edition, Vol. 13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol.1 P. 291 and (iii) Beales v. Beales, 1972 (2) All E.R., 667 at 674.]
15) In our view, the interpretation given to the section by the High Courts of Kerala, Punjab and Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view. The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra) cannot be said to have laid down the law correctly and they stand overruled."
11. Applying the above exposition of the Hon'ble Apex Court it must be said that definitely there is a room for either party to the marriage to resile from its earlier consent and whether or not to allow such party to withdraw its consent is a question to be determined by the Court on the backdrop of the facts of the individual case.
12. In our considered view, definitely the Family Court should have considered the said Settlement Terms in proper perspective and more so; when the contents of paragraph 2 of the said Settlement Terms mentioned regarding conversion of the application by both the parties under Section 13B of the Hindu Marriage Act. Moreover, this matter can be viewed in a different perspective as according to the Settlement Terms arrived at before the learned Mediator, initially the entire custody of the child then aged about two years, was agreed to be given to the husband but subsequently the present petitioner had come with a plea as to in what circumstances those Consent Terms were arrived at. If it is accepted that the said Consent Terms were arrived at with full consent and knowledge, still all the clauses in the Consent Terms should have been given effect to prior to putting an end to the matrimonial tie between the parties by way of dissolution of marriage specifically on the basis of the Consent Terms and giving the entire custody of the small child in favour of the husband. Again it must be mentioned that the impugned order speaks to the effect that the application Exh. 28 i.e. Application No. 71 of 2014 was allowed and there is no clarification as to the access of the child whether to be given to the present petitioner-wife or whether she is entitle or not. In fact, that aspect was must to have been discussed by the Family Court while passing the impugned order, more so; in the light of the Consent Terms.
13. In the result, we allow the present appeal and set aside the impugned order and remand the matter back to the Family Court, Mumbai for reappraisal. Rival contentions of the parties are left open to be pleaded before the Family Court in the pending petition for divorce preferred by the husband.
14. In view of the disposal of the Family Court Appeal, Civil Application No. 291 of 2014 does not survive and is disposed of accordingly.
15. Upon oral request on behalf of the respondent, the effect and operation of this order, is stayed for a period of six weeks from today.