Division bench of Justice M. Y. Eqbal and Justice C. Nagappan of Supreme Court of India while deliberating over the divorce by mutual consent (Section 13-B of Hindu Marriage Act) emphasized on section 23 of the same Act. Section 23(1)(bb) states that “in any proceedings under this Act, whether defended or not, of the court is satisfied that – when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence.” To explain further, Court laid emphasis on the case of Sureshta Devi v Om Prakash, where it was observed – “……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.”
Also, Section 16 of Indian Contract Act was taken into consideration where it is stated that contract is said to be induced by “undue influence” where one party is in the position to dominate the other party and uses that position to obtain an unfair advantage over the other.
Further, “Pre-existing duty doctrine” was also taken into consideration. This doctrine 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 voidable.
While applying these above mentioned principles Court held that that by the settlement agreement husband is promising to do something which he is already duty bound and hence it will not amount to a valid consideration for the settlement.
Further, Court passed the following order –
Transferred the petition to Family Court, Hyderabad as per the request of the wife. Husband should pay Rs. 5 Lakhs out of the agreed 12.5 Lakhs for the medical expenses of wife. After wife is cured from the disease or within 6 months, which is earlier, Family Court at Hyderabad will take up the case along with fresh application that may be filed by the parties under Section 13-B for divorce by mutual consent.
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