8888677771 | Family courts cannot compel parties to take divorce if not mutually agreed: Delhi HC | Delhi News

The Delhi High Court has held that family courts cannot compel parties to take divorce if it is not mutually agreed between them.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna made the observation in its September 14 order while dismissing a husband’s appeal against a January 30 family court order rejecting his contempt petition against the wife for not abiding by a September 28, 2020, memorandum of understanding (MoU) where “parties had agreed to take divorce by mutual consent”.

Observing that the primary objective of matrimonial laws is to make a sincere endeavour for reconciliation between the parties, the high court said, “The parties mutually entered into a settlement without initiating any divorce proceedings in the court. The MoU was submitted by the parties at the time of first motion. The respondent (wife) in her cooling off period after first motion has had second thoughts and decided against taking divorce. The approach of the family courts being reconciliatory, it cannot compel the parties to take divorce if not mutually acceptable.”

A first motion is a joint petition filed by the parties when they want a mutual divorce; subsequently, a second motion petition is filed when the parties appear after six months wherein the six-month time is given to parties for any reconciliation in case they change their mind.

The high court observed that the wife had “no inclination to grant divorce” since she had already filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and had also filed a guardianship petition for seeking permanent custody of their minor daughter.

“In view of the above, we do not find that the respondent has committed any contempt under the Contempt of Courts Act. There is no merit in the present appeal which is hereby dismissed,” the bench said.

The couple got married in November 2017 and had a daughter. Due to marital discord, both parties decided to dissolve their marriage by way of mutual consent. They executed an MoU on September 28, 2020, pursuant to which, a petition for divorce under Hindu Marriage Act (HMA) was filed. The petition for first motion under the HMA was allowed on December 18, 2020, by the family court. However, the respondent-wife did not come forth to file the petition for the second motion of divorce and consequently, the appellant-husband filed the contempt plea against her.

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The man claimed that the woman had “unilaterally withdrawn her consent for second motion” and had thus defaulted in compliance with the terms of the MoU. The wife claimed that time was granted to her to reconsider her option for divorce by mutual consent after the first motion was accepted. She claimed that her signatures were obtained on the MoU by “misrepresentation of facts” by the “counsel for the appellant” who had been engaged by him at the time of filing of first motion and who had prepared the unilateral conditions in the MoU.

The family court in its order concluded that there was no wilful breach of any undertaking given to the court and no contempt was made out against the respondent-wife.

Referring to a 2018 decision of the high court, the bench said, “…the respondent’s withdrawal of consent to come forth for second motion for divorce by mutual consent cannot be termed as contempt…the respondent-wife cannot be compelled to give her consent for second motion which alone is the prayer of the appellant. So being the case, we find that the learned judge, family courts has rightly observed that there was no civil contempt of court committed by the respondent.”

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