REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO. 702 OF 2015
Vennangot Anuradha Samir …..Petitioner
versus
Vennangot Mohandas Samir …Respondent
O R D E R
M.Y. EQBAL, J.
Heard learned counsel appearing for the parties and perused the
records along with the affidavits and petitions.
records along with the affidavits and petitions.
2. Admittedly, the marriage of the petitioner with the respondent was
solemnized in April, 2010 according to Hindu Vedic Rites. At the time of
marriage, the respondent-husband was a bachelor and the petitioner-wife was
a divorcee. It was a love marriage after both of them came in contact with
each other in October, 2006. In 2013, some misunderstanding developed
between the petitioner and the respondent as a result of which the
petitioner left the house.
solemnized in April, 2010 according to Hindu Vedic Rites. At the time of
marriage, the respondent-husband was a bachelor and the petitioner-wife was
a divorcee. It was a love marriage after both of them came in contact with
each other in October, 2006. In 2013, some misunderstanding developed
between the petitioner and the respondent as a result of which the
petitioner left the house.
3. In 2015, the respondent-husband filed a suit for dissolution of
marriage by a decree of divorce under Section 13(1)(1a) of the Hindu
Marriage Act on the ground that the petitioner-wife after solemnization of
the marriage had committed various acts of cruelty. Admittedly, the
petitioner is living in Hyderabad with her parents. The petitioner,
therefore, moved an application before this Court for transfer of divorce
suit pending before the Family Court Bombay to the Family Court at
Hyderabad.
marriage by a decree of divorce under Section 13(1)(1a) of the Hindu
Marriage Act on the ground that the petitioner-wife after solemnization of
the marriage had committed various acts of cruelty. Admittedly, the
petitioner is living in Hyderabad with her parents. The petitioner,
therefore, moved an application before this Court for transfer of divorce
suit pending before the Family Court Bombay to the Family Court at
Hyderabad.
4. The transfer petition was listed before this Court on 28.08.2015,
when, at the request of the counsel for the parties, the matter was
referred to Supreme Court Mediation Centre for amicable settlement. Before
the Mediation Centre, a Settlement Agreement was filed on 26.10.2015. In
terms of the said Settlement Agreement, the respondent-husband agreed to
pay Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only) towards full and
final settlement as alimony, maintenance for past and future or any other
claim of the petitioner. The respondent-husband had agreed to pay the said
amount of Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only), by way of Bank
draft in the name of the Registrar, Supreme Court, which shall be paid to
the petitioner-wife at the time of passing of decree of divorce by mutual
consent.
when, at the request of the counsel for the parties, the matter was
referred to Supreme Court Mediation Centre for amicable settlement. Before
the Mediation Centre, a Settlement Agreement was filed on 26.10.2015. In
terms of the said Settlement Agreement, the respondent-husband agreed to
pay Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only) towards full and
final settlement as alimony, maintenance for past and future or any other
claim of the petitioner. The respondent-husband had agreed to pay the said
amount of Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only), by way of Bank
draft in the name of the Registrar, Supreme Court, which shall be paid to
the petitioner-wife at the time of passing of decree of divorce by mutual
consent.
5. On 6th November, 2015, the case was again listed along with the
office report and Settlement Agreement. The matter was adjourned to enable
the parties to file appropriate application.
office report and Settlement Agreement. The matter was adjourned to enable
the parties to file appropriate application.
6. Consequently, an application was filed purported to be under Section
13B of the Hindu Marriage Act with a prayer to treat the divorce petition
pending before the Family Court, Bombay as an application under Section 13B
of the Act and treat the present application as second motion and grant
divorce by way of mutual consent.
13B of the Hindu Marriage Act with a prayer to treat the divorce petition
pending before the Family Court, Bombay as an application under Section 13B
of the Act and treat the present application as second motion and grant
divorce by way of mutual consent.
7. In the said application it was mentioned that petitioner-wife is
suffering life threatening disease and urgently requires funds for her
medical treatment and also that she has to depend on herself for proper
care.
suffering life threatening disease and urgently requires funds for her
medical treatment and also that she has to depend on herself for proper
care.
8. On 17.11.2015, the case was adjourned at the request of the
petitioner-wife, to enable her to file additional documents in support of
her case that she is suffering with life threatening disease. In compliance
thereof additional documents have been brought on record.
petitioner-wife, to enable her to file additional documents in support of
her case that she is suffering with life threatening disease. In compliance
thereof additional documents have been brought on record.
9. Perusal of the document i.e. the medical certificate, reveals that a
lump in the breast was found which highly suggests malignancy. The doctors
recommended for an immediate surgery and chemotherapy ranging from 6 to 8
cycles of adjuvant. It is mentioned that approximate costs per cycle will
cost about Rs. 50,000/-.
lump in the breast was found which highly suggests malignancy. The doctors
recommended for an immediate surgery and chemotherapy ranging from 6 to 8
cycles of adjuvant. It is mentioned that approximate costs per cycle will
cost about Rs. 50,000/-.
10. From the above mentioned admitted facts, it is evident that the
petitioner needs sufficient amount of money for the treatment of breast
cancer. Hence, it cannot be ruled out that in order to save her life by
getting money, she agreed for a settlement of dissolution of marriage. On
these facts, a question that came in our mind is as to whether the Court
would be justified in granting a decree for divorce on the basis of
settlement when the wife is suffering with breast cancer and is in need of
money for her treatment and can that be the consideration for dissolution
of marriage.
petitioner needs sufficient amount of money for the treatment of breast
cancer. Hence, it cannot be ruled out that in order to save her life by
getting money, she agreed for a settlement of dissolution of marriage. On
these facts, a question that came in our mind is as to whether the Court
would be justified in granting a decree for divorce on the basis of
settlement when the wife is suffering with breast cancer and is in need of
money for her treatment and can that be the consideration for dissolution
of marriage.
11. Hindu marriage is a sacred and holy union of husband and wife by
virtue of which the wife is completely transplanted in the household of her
husband and takes a new birth. It is a combination of bone to bone and
flesh to flesh. To a Hindu wife her husband is her God and her life
becomes one of the selfless service and profound dedication to her husband.
She not only shares the life and love, but the joys and sorrows, the
troubles and tribulation of her husband and becomes an integral part of her
husband’s life and activities. Colebrooke in his book “Digest of Hindu Law
Volume II” described the status of the wife thus:-
virtue of which the wife is completely transplanted in the household of her
husband and takes a new birth. It is a combination of bone to bone and
flesh to flesh. To a Hindu wife her husband is her God and her life
becomes one of the selfless service and profound dedication to her husband.
She not only shares the life and love, but the joys and sorrows, the
troubles and tribulation of her husband and becomes an integral part of her
husband’s life and activities. Colebrooke in his book “Digest of Hindu Law
Volume II” described the status of the wife thus:-
“A wife is considered as half the body of her husband, equally sharing the
fruit of pure and impure acts:- whether she ascend the pile after him or
survive for the benefit of her husband, she is a faithful wife.”
fruit of pure and impure acts:- whether she ascend the pile after him or
survive for the benefit of her husband, she is a faithful wife.”
12. Further Colebrooke in his book Digest of Hindu Law Volume-II quoted
the Mahabharata at page 121 thus:-
the Mahabharata at page 121 thus:-
“Where females are honoured, there the deities are pleased; but where they
are unhonoured there all religious acts become fruitless.”
are unhonoured there all religious acts become fruitless.”
This clearly illustrates the high position which is bestowed on Hindu women
by the Shastric law.
by the Shastric law.
13. From the study of Hindu Law and different religious books, it cannot
be disputed that after marriage law enjoins the corresponding duty on the
husband to look after her comforts and not only to provide her food and
clothes but to protect her from all calamities and to take care of her
health and safety.
be disputed that after marriage law enjoins the corresponding duty on the
husband to look after her comforts and not only to provide her food and
clothes but to protect her from all calamities and to take care of her
health and safety.
14. In the peculiar facts of the present case if we consider the instant
settlement, which is nothing but a contract to dissolve the marriage, the
Court has to satisfy itself that the contract is legal and valid in the eye
of law. From perusal of the facts of the case and the development which
has taken place in the present case, it seems that the petitioner-wife
agreed for divorce by mutual consent on the condition that the respondent-
husband will pay her Rs.12,50,000/- as full and final settlement. The
petitioner-wife is suffering from such a disease which has compelled her to
agree for the mutual consent divorce. The fact that petitioner-wife is
ready for the mutual consent divorce after knowing about her medical
condition raises a suspicion in our mind as to whether the consent obtained
from the petitioner-wife is free as required by law for granting the decree
of divorce by mutual consent.
settlement, which is nothing but a contract to dissolve the marriage, the
Court has to satisfy itself that the contract is legal and valid in the eye
of law. From perusal of the facts of the case and the development which
has taken place in the present case, it seems that the petitioner-wife
agreed for divorce by mutual consent on the condition that the respondent-
husband will pay her Rs.12,50,000/- as full and final settlement. The
petitioner-wife is suffering from such a disease which has compelled her to
agree for the mutual consent divorce. The fact that petitioner-wife is
ready for the mutual consent divorce after knowing about her medical
condition raises a suspicion in our mind as to whether the consent obtained
from the petitioner-wife is free as required by law for granting the decree
of divorce by mutual consent.
15. Section 13-B of the Hindu Marriage Act makes a provision of divorce
by mutual consent, which reads as under:-
by mutual consent, which reads as under:-
“13B Divorce by mutual consent—
(1) Subject to the provisions of this Act a petition for dissolution of
marriage by a decree of divorce may be presented to the district court by
both the parties to a marriage together, whether such marriage was
solemnised before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), on the ground that they have been
living separately for a period of one year or more, that they have not been
able to live together and that they have mutually agreed that the marriage
should be dissolved.
(2) On the motion of both the parties made not earlier than six months
after the date of the presentation of the petition referred to in sub-
section (1) and not later than eighteen months after the said date, if the
petition is not withdrawn in the meantime, the court shall, on being
satisfied, after hearing the parties and after making such inquiry as it
thinks fit, that a marriage has been solemnised and that the averments in
the petition are true, pass a decree of divorce declaring the marriage to
be dissolved with effect from the date of the decree.”
16. Section 23 casts a duty upon a Court to record its satisfaction
before passing a decree in a suit or proceeding. Section 23(1)(bb) is
also worth to be quoted hereinbelow:-
before passing a decree in a suit or proceeding. Section 23(1)(bb) is
also worth to be quoted hereinbelow:-
“23.Decree in proceedings :—
In any proceeding under this Act, whether defended or not, if the court is
satisfied that—
(a) ……………………………………………
(b) ……………………………………………
(bb) when a divorce is sought on the ground of mutual consent, such consent
has not been obtained by force, fraud or undue influence.”
17. This Court elaborately discussed the aforesaid provisions in the case
of Sureshta Devi vs. Om Prakash, (1991) 2 SCC 25, and observed thus:-
of Sureshta Devi vs. Om Prakash, (1991) 2 SCC 25, and observed thus:-
“……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.”
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.”
18. If we consider the provisions of Indian Contract Act, it provides
that consent is said to be free when it is not caused by “undue influence”
as defined in Section 16 of the Act. The contract is said to be induced by
“undue influence” where the relations subsisting between the parties are
such that one of the parties is in a position to dominate the will of the
other and uses that position to obtain an unfair advantage over the other.
that consent is said to be free when it is not caused by “undue influence”
as defined in Section 16 of the Act. The contract is said to be induced by
“undue influence” where the relations subsisting between the parties are
such that one of the parties is in a position to dominate the will of the
other and uses that position to obtain an unfair advantage over the other.
19. One more doctrine is to be taken into consideration i.e. “Pre-existing
duty doctrine”. It is a principle under the Contract Act that states that
if a party to a contract is under a pre-existing duty to perform, then no
consideration is given for any modification of the contract and the
modification is therefore voidable. In the 13th edition of the Pollock &
Mulla Indian contract and Specific relief Act in Vol.1, it is mentioned at
page 101 about the Pre-existing obligation under law which provides that:-
duty doctrine”. It is a principle under the Contract Act that states that
if a party to a contract is under a pre-existing duty to perform, then no
consideration is given for any modification of the contract and the
modification is therefore voidable. In the 13th edition of the Pollock &
Mulla Indian contract and Specific relief Act in Vol.1, it is mentioned at
page 101 about the Pre-existing obligation under law which provides that:-
“The performance of what one is already bound to do, either by general law
or by a specific obligation to the other party, is not a good consideration
for a promise; because such performance is no legal burden to the promise,
but rather relives him of a duty. Neither is the promise of such
performance a consideration, since it adds nothing to the obligation
already existing.”
or by a specific obligation to the other party, is not a good consideration
for a promise; because such performance is no legal burden to the promise,
but rather relives him of a duty. Neither is the promise of such
performance a consideration, since it adds nothing to the obligation
already existing.”
20. We can apply this principle in the present case. As discussed above,
it is a duty of the respondent-husband to take care of the health and
safety of the petitioner-wife. In the instant case also it is a primary
duty of the husband only to provide facilities for the treatment of the
petitioner. This is a pre-existing duty of the husband, provided the
husband has sufficient means and he is diligently doing his part in taking
care of her. In the present case, by the settlement agreement the
respondent-husband is promising to do something which he is already duty
bound, is not a valid consideration for the settlement.
it is a duty of the respondent-husband to take care of the health and
safety of the petitioner-wife. In the instant case also it is a primary
duty of the husband only to provide facilities for the treatment of the
petitioner. This is a pre-existing duty of the husband, provided the
husband has sufficient means and he is diligently doing his part in taking
care of her. In the present case, by the settlement agreement the
respondent-husband is promising to do something which he is already duty
bound, is not a valid consideration for the settlement.
21. In the peculiar facts and circumstances of the case, we, therefore,
pass the following order:-
pass the following order:-
(i) The transfer petition for the transfer of matrimonial suit being
petition No.A-642 of 2015 pending before the Family Court at Bombay,
Maharashtra to Family Court at Hyderabad is allowed. The petition is
ordered to be transferred accordingly. The transferor court shall
forthwith transmit the record of the aforesaid case to the transferee
court.
petition No.A-642 of 2015 pending before the Family Court at Bombay,
Maharashtra to Family Court at Hyderabad is allowed. The petition is
ordered to be transferred accordingly. The transferor court shall
forthwith transmit the record of the aforesaid case to the transferee
court.
(ii) The respondent-husband shall pay a sum of Rs.Five Lacs (Rs.5,00,000/-
) out of Rs.12,50,000/- to the petitioner-wife immediately within a week
for her treatment and meeting other medical expenses.
) out of Rs.12,50,000/- to the petitioner-wife immediately within a week
for her treatment and meeting other medical expenses.
(iii) After the petitioner is fully cured from the disease or within six
months whichever is earlier, the Family Court at Hyderabad, where the
divorce petition is ordered to be transferred, shall take up the case along
with a fresh application that may be filed by the parties under Section 13B
for divorce by mutual consent. After compliance of all the formalities,
the Family Court at Hyderabad shall dispose of those petitions in
accordance with law after recording its satisfaction and giving opportunity
of hearing to both the parties.
months whichever is earlier, the Family Court at Hyderabad, where the
divorce petition is ordered to be transferred, shall take up the case along
with a fresh application that may be filed by the parties under Section 13B
for divorce by mutual consent. After compliance of all the formalities,
the Family Court at Hyderabad shall dispose of those petitions in
accordance with law after recording its satisfaction and giving opportunity
of hearing to both the parties.
J. M.Y. Eqbal
J. C. Nagappan
New Delhi
December 02, 2015
December 02, 2015
