21. PRAYER:-The petitioner therefore prays that, the marriage between the petitioner and the Respondent may be dissolved by a decree of divorce.
New Delhi
Date ........
PETITIONER
Through
Advocate
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Specimen Agreement for Mutual Consent Divorce:-
AGREEMENT (Details of the parties etc should be written here ..... Specimen of how to write parties can be read from chapter about Conveyancing).
And Whereas on account of intervention of common friends and relatives, parties have agreed to resolve their differences for their mutual benefits and for the benefits of both the families on the terms and conditions contained herein :
Now this Agreement is Witnessth as Under :
1.The marriage between the parties has irritrieveably been broken. The parties have agreed to disolve the marriage by a degree of divorce by mutual consent. The first motion shall be filed on the 29th June, 1996 before the Hon'ble Court of District Judge, Delhi. A sum of Rs. 2,00,000.00(Rupees two lacs only) shall be paid to the second party by Bank Demand Draft on the divorce decree being granted by the Hon'ble Court. The amount shall be paid in the presence of the Court on completion of the formalities of the second motion. The parties agreed to sign the first motion on 27th June, 1996 in the Chamber of Shri .....
2.Both the parties have agreed to file a petition u/Sec. 482, Criminal Procedure Code . before the Hon'ble High Court of Delhi on 29th day of June, 1996 for quashing the F.I.R. No. .... u/Sec. 498-A/406/34, IPC, P.S. ..... and the proceeding pending before the Hon'ble Court of Judicial Magistrate..... The parties have also agreed to sign this petition for quashing on 27th day of June, 1996 simultaneously of signing the petition for divorce. The both parties shall appear before the Hon'ble Court, Delhi to make a statement in support of the quashing petition. Party No.l shall pay a draft of Bank of Rs. 5,00,000.00 (Rupees five lacs only) in the presence of the Court after statement of parties have been recorded in the Hon'ble Court to party No. 2. An attempt to be made by requesting the Hon'ble Court to quash the F.I.R. and proceedings on that very day. In any event a request shall be made to stay the proceedings before the Learned Magistrate Court.
2.1. Regarding the Custody of children, following terms and conditions are made:-
2.2. Regarding the visitation rights of children, following terms and conditions are made:-
2.3. Regarding the present and future maintenance of the wife and children, following terms and conditions are made:-
3.The parties shall on expiry of a period of six months or earlier, if possible shall sign and present application for second motion for obtaining Degree of Divorce by mutual consent.The parties undertake to co-operate for quashing the F.I.R. as well as obtaining the decree of divorce. No complaint against each other shall remain pending thereafter anywhere.
IN Witness Thereof the parties have hereto signed this Agreement in the presence of the following witnesses. At Delhi, on dated:-.....
Sd/- FIRST PARTY. 1. Sd/- . 2. SECOND PARTY"
Witnesses (1).... (2).....
/ATTESTED BY/ Notary.
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Specimen of Petition for mutual consent:- The High Courts have Rules to regulate Matrimonial Litigations, in which skelton of all the Divorce Petitions are given. In a Mutual consent Divorce petition, no other Grounds for Divorce needed to be prayed. Thus, there is no purpose to be served by quoting the said Specimen Mutual consent petition in this book. The litigations in this field will start only at following stages:- (1) After granting of Divorce, a party may file a Civil Suit to quash the said decree alleging any grounds, (2) If one of the party is not willing to come for 2nd Motion, it may be necessary to file a Writ Petition, and (3) Miscelleneous Application in the Divorce Court for waiving 6 months waiting time. Specimen of Writ petition is given and Case law about waiving 6 months waiting time are given as follows:-
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IN THE HON'BLE HIGH COURT of...... AT ......
Writ Petition (Civil) No...... of ........
Mrs.aaa Vs. The State & Anr.
IN THE MATTER OF:-
Mrs.aaa, aged...yrs, wife of Mr.bbb, daughter of Mr.ccc, resident of Ground floor of the Kothi No.1, Sector-2, place.....
.......... Petitioner
VERSUS
1. The state of ...., through the Additional District Judge No...., for the City ..., State of ...
2. Mr.bbb, aged ... yrs, son of Mr.ddd, resident of the first floor of the Kothi No.1, Sector-2, place.....
.......... Respondents
AND IN THE MATTER OF:-
WRIT PETITION UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA.
READ WITH SECTION 115 OF THE CIVIL PROCEDURE CODE.
Read With Section 13B(2) of the Hindu Marriage Act, 1955.
OR section 28(2) of the Special Marriage Act, 1954.
OR section 32B of the Parsi Marriage and Divorce Act, 1936.
AND IN THE MATTER OF:-
WRIT PETITION TO ENFORCE THE FUNDAMENTAL RIGHTS UNDER ARTICLES 14 AND 21 OF THE CONSTITUTION OF INDIA BY AWARDING DIVORCE DECREE BY QUASHING THE IMPUGNED ORDER PASSED BY THE ADJ COURT/RESPONDENT NO-1, BY DISSOLVING THE MARRIAGE BETWEEN THE PETITIONER AND THE RESPONDENT NO-2.
To,
Hon’ble the Chief Justice and his Companion Justices.
The Humble Writ Petition of the Petitioner above named.
Most Respectfully Sheweth:-
1. Names and addresses of the parties are given in the memo of parties and at the beginning of the Writ Petition, which are not being repeated for the sake of brevity.
2. The Petitioner is a Citizen of India and entitled to the Fundamental Rights as guaranteed in the Constitution Of India. The Respondent No-1 to this Writ Petition is the Learned Presiding Officer of the Divorce Case No.... of year .....; which had been dismissed him on date ..... The respondent No-2 is the husband of the Petitioner, not residing together since the last 2 years; who had been a party to the above referred to Divorce Petition before the respondent no-1.
2.1. From the address given above it can be seen by this Hon'ble Court that, the petitioner/ wife and respondent no-2/ husband are immediate neighbour, and from the Annexure P-1 (Colly) it may be seen that, addresses prior to marriage also had been the same. In fact, it was a love marriage, against the wishes of the parents of the petitioner. After the first/ only girl child's delivery, the petitioner met with an accident, resulting in removal of her utreus. Thus, it will not be possible for her to conceive again. This created huge unhappiness in the mind of the respondent no-2, being he wanted a Boy child also. He started to consume Alcohol, and commenced to misbehave with the petitioner and neighbours, and a Panchayat had been conveined to advice the petitioner to go away from the life of the respondent no-2, which resulted in the present Mutual Consent Divorce Proceedings.
3. The Certified copy of the complete file of the Divorce petition No..... of year...., along with all the orders, including the final order dated.... is enclosed herewith and marked as Exihibit P-1 (Collectively) for the kind perusal of this Hon'ble Court.
4. Brief facts leading to the filing of the present petition are as follows:-
(a) The marriage between the petitioner/wife and the respondent No-2/husband who are both Hindus, was solemnized on 12.3.1996 according to Hindu rites and ceremonies. OR according to concerned Acts.....
(b) That on 11.12.1997 one female child was born and the said child is in the custody of the petitioner/ wife.
(c) From the address given above it can be seen by this Hon'ble Court that, the petitioner/ wife and respondent no-2/ husband are immediate neighbour, and from the Annexure P-1 (Colly) it may be seen that, addresses prior to marriage also had been the same. In fact, it was a love marriage, against the wishes of the parents of the petitioner. After the first/ only girl child's delivery, the petitioner met with an accident, resulting in removal of her utreus. Thus, it will not be possible for her to conceive again. This created huge unhappiness in the mind of the respondent no-2, being he wanted a Boy child also. He started to consume Alcohol, and commenced to misbehave with the petitioner and neighbours, and a Panchayat had been conveined to advice the petitioner to go away from the life of the respondent no-2, which resulted in the present Mutual Consent Divorce Proceedings. It is submitted that, initially it was not known why he is behaving like this, thus the petitioner had filed Dowry cases against him. However, the respondent no-2/ husband cannot deny the fact that, during the initial days after honey-moon, he started to demand share of the petitioner from her parents and siblings.
(d) That because of violent behaviour and greedy nature of the respondent No-2, the petitioner was thrown out by the respondent No-2 from the matrimonial home. It is not in dispute that since 7th February, 2002 both the parties are living separately.
(e) That on 18.2.2002 the respondent No-2/husband filed a petition under Section 10 of the Hindu Marriage Act for judicial separation before the District Judge, ...., which had been transferred to the file of the Respondent No-1; and on 1.5.2002 petitioner filed a complaint under Sections 498-A/406, IPC before Dowry Cell.
(f) On 15.7.2002 the petitioner filed an application under Section 24 of the HMA for maintenance before the Respondent No-1/ Additional District Judge No..... after she put in her appearance on the receipt of summons in the above matter.
(g) That on 16.9.2002, the respondent No-2 moved an application before the learned ADJ/ Respondent No-1 for withdrawal of his petition under Section 10 which declined by the said Court.
(h) Due to the intervention of the Panchayat as described at para (c) above, on 8.9.2003 both the parties (that is the Petitioner and the Respondent No-2) compromised their disputes and entered into a compromise deed. The said Deed is part and parcel of Annexure P-1, at the page.... By virtue of the settlement under the said compromise the parties filed an application under Order 6 Rule 17 read with Section 151. CPC for amendment converting the petition under Section 10, Hindu Marriage Act into a petition under Section 13(B)(1) of the Hindu Marriage Act for divorce by mutual consent.
(i) Along with the application for amendment both the parties filed their affidavit in support as well as both the petitions under Sections 13-B(1) and 13-B(2) of the said Act for dissolution of their marriage by way of mutual consent together with the compromise deed and prayed for waiving the stipulated period of 6 months and permission to place on record the petition under Section 13-B(2) along with the petition under Section 13-B(1) of the said Act which is admitted by both the parties as per the records of the Trial Court.
(j) That on 25.9.2003 the learned ADJ allowed the above application for amendment and recorded the joint statements of both the parties knowing well that both the petitions under Sections 13-B(1) and 13-B(2) of the Act were on record. The said statement is as follows:
“AGREEMENT FOR MUTUAL CONSENT DIVORCE
“The marriage between both the parties was solemnized according to Hindu rites and ceremonies on 12.3.1996 at Delhi. After marriage, both the parties lived together as husband and wife and cohabited with each other and one female child, named Baby eee was born from the said marriage. Due to differences in our attitudes and temperaments, we both are living separately since 7.2.2002 and now there is no possibility of our living together as husband and wife.
“We have amicably settled all our disputes with regard to dowry articles, maintenance and permanent alimony and Dowry (Istreedhan), etc. as per the compromise deed, which is annexed with the petition and is Exb. P1. It has been agreed between both of us that the child above named shall remain with the petitioner wife and petitioner husband shall not claim the custody of the child in future, nor he shall have the visiting right to meet the child. The petition is Exb. P2, both undertake to abide by the terms and conditions of the petition contained therein, as well as the compromise deed. The petition has not been filed in collusion with each other. Our consent for divorces free from any force, fraud or undue influence. The petitioner wife undertakes to get the FIR quashed, filed by her against the petitioner husband.”
(NOTE:- There is separate chapter in this book, about Conveyancing. In that, the theory and specimen forms of Agreements are already written. All such formalities to be followed for Divorce by Mutual Consent also. One more specimen about Agreement of Mutual Consent Divorce is also provided in this book. At the para 2, at separate columns, the following details should be given:- (1) Compensation amount between parties.... (2) Return of Dowry articles and amount as per details or separate Schedule/ Annexure.... (3) Future maintenance amount to the wife (4) Future maintenance amount to each of the children; and any other terms and conditions – Author).
(k) On 1.10.2003 the learned Additional District Judge/ Respondent No-1.... passed the following order, certified copy is already filed, at page ... of the Annexure P-1:-
“From the statement of the petitioners it is also evident that the consent of the petitioners for divorce is free from force, fraud or undue influence and there is no collusion in filing this petition.
“I am therefore satisfied that the requirements of Section 13-B(1) of the Act have been duly satisfied in this case. However, the marriage of the petitioners cannot be dissolved straightaway in view of the provisions of Section 13(B)(2) of the H.M. Act. Both the petitioners are therefore advised to try to live together and to patch-up their differences in due course of time. In case, they fail to do so, they may move their second motion petition within the statutory period in accordance with law.”
(l) That on 9.10.2003 the petitioner moved an application under Section 151, CPC for modification of the above order dated 1.10.2003 and submitted that on 25.9.2003 both the petitions under Sections 13-B(1) and 13-B(2) of the Act were on record and the parties have compromised their disputes and given their consent for dissolving the marriage by way of decree of divorce by mutual consent. It was also admitted by both the parties that the Learned Additional District Judge granted permission to file the second motion petition under Section 13-B(2) of the Act by waiving the stipulated period of 6 months on the oral request and prayer of the parties. Therefore, it was prayed that the order dated 1.10.2003 passed by the said Court be rectified/modified to the extent that the marriage between the parties stands dissolved after the joint statements was recorded on 25.9.2003.
(m) During pendency of these proceedings, the 2nd wife of the respondent no-2 had given birth to a boy child on date....; however, she did not like to live with the respondent no-2 and she had eloped with a Nursing Attendant of the hospital where the delivery took place, after discarding the child there. It is learnt that both of them had been class mates, but he went missing for many years thus she consented to this illegal 2nd marriage of the respondent no-2, but she was also tortured and taunted for her share from her parental home, thus when she met the childhood love, she eloped.
(n) After that, it is learnt that, the respondent no-2 had consulted Doctors to find that, even in the absence of utreus upon the person of the petitioner/ wife, is fit to indulge in Conjugal relationships, with the help of Lubricants, and being without a wife, he was in need of a wife, thus he made efforts to re-start his friendly relationship, about which through Panchayat, a complete full-stop was achieved.
(sub-para 'o') The development in the life of the petitioner/ wife is that, meanwhile she learnt Computer Programming Courses from reputed Institutes and started to get work from the Government of India, Ministry of Law and Justice, the work on Contract to make Legal Softwares; and to make Web-sites, for the Government of India, from which only with the help of her Desk-top computers, 2 in number, she started to earn Rs.fifty thousand per month, and the TDS for Professional Services with the Government is any amount above Rs.twenty thousand, certain percentage to be deducted. Consequently, her TDS per month itself runs into many thousands of rupees. Because of all these, today her standard of living is more advanced than that of her husband/ respondent no-2.
(p) That on 19.1.2004 the respondent no-2 filed an application for withdrawal of his consent in a second motion and admitted in the said application that the learned Additional District Judge/ respondent no-1, was pleased to grant permission to file the second motion then by waiving the stipulated period of 6 months. The only ground mentioned for withdrawal of the consent was that the respondent after signing the second motion has realized his approach on matrimonial matter is not correct and further felt that the matrimonial relationship must continue.
5. That on 31.3.2004 the learned Additional District Judge dismissed the application of the petitioner/ wife for modification of the order dated 1.10.2003 and allowed the application of the respondent for withdrawal of the consent in the second motion under Section 13-B(2) and dismissed the said petition. This petition challenges the order dated 31.3.2004 permitting the respondent to withdraw his Consent. One of the grounds for his dismissal was that, the wife and husband are even now immediate neighbours, there is no law and order problem because of this fact; the wife is not making an efforts to stay away at any other place, eventhough she have relatives to shift away, thus it will be appropriate for us to live together. Those orders are at pages... and .... of the Annexure P-1.
6. That the impugned order dated 31.3.2004 declining to modify the order dated 1.10.2003 thereby dismissing the petition under Section 13-B(2) of the Hindu Marriage Act, Certified copy of the same is produced at page... of the Annexure P-1, for the kind perusal of this Hon'ble Court.
7. That the respondent no-2/husband had availed all the benefits and enjoyed the fruits of settlement and compromise between the parties in the following manner:
(i) by not returning any Istreedhan and maintenance to the petitioner or to his minor female child,
(ii) by handing over the custody of the girl child to the petitioner without taking any liability for her welfare,
(iii) by forcing the petitioner under the garb of the said compromise to withdraw the complaint under Sections 498-A and 406, IPC filed with the Anti Dowry Cell and the said complaint was in fact not pursued by the petitioner and the same was closed on account of such compromise.
(iv) by re-marrying himself and having a boy child out of the said re-marriage.
8. The finding of the learned Additional District Judge/ respondent no-1 regarding the non- filing of the application for waiving the statutory period of 6 months is unsustainable because both the petitions under Sections 13-B(1) and 13-B(2) along with application under Order 6 Rule 17 as well as compromise deed were on record. The respondent No-2 had in fact admitted the factum of grant of permission by the said Court to file the second motion by waiving the stipulated period of 6 months in his application for withdrawal of his consent.
9. Further, from the pleadings of the parties before the learned Additional District Judge it is clear that both the parties had agreed for the grant of decree of divorce by mutual consent and compromised all their disputes and also prayed orally for the waiver of period of 6 months which was permissible as at the time of recording the joint statements as both the petitions under Sections 13-B(1) and 13-B(2) were already on record.
GROUNDS:-
A. Because in spirit the section is “Directory” in nature and it has been incorporated to help two discordant spouses to get quick separation and to lead their remaining life without any agony. If Section 13-B(2) is read as “Mandatory”, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated. Thus, Section 13-B(2), though it is mandatory in form is directory in substance.
B. Because in view of the text, context, purpose and design of the said provision, it was held that Section 13-B(2) is a part of mere 'procedure' and is, therefore, 'directory'.
C. The learned Trial court/ respondent no-1 failed to exercise the jurisdiction to grant divorce, despite the legal principle that, the expression “living separate” means that parties are not living as husband and wife, irrespective of the fact that, they may be residing under same roof or immediate neighbours, as held in Samistha Vs. Om Prakash, AIR 1992 SC 1909.
E. The Factum that, respondent no-2/ husband admitted about he is not able to live together with the petitioner/ wife means, the marriage between the parties had broken down irretrievably, as held in Samistha Vs. Om Prakash, AIR 1992 SC 1909.
F. Because in a petition for divorce by mutual consent, the parties are not permitted to plead and prove any other ground, as held in Ravi Vs. Sharda, AIR 1978 MP 44.
G. Because there is no public interest involved in maintaining the marriage as a facade, when the emotional basis for the marriage has disappeared by the conduct of the absconding husband who had already remarried in spite of attempting to withdraw unilaterally his consent and even has a child from his remarriage.
H. Because the broken iron can be joined together but not broken hearts. Parties have been living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away.
I. Because when it is impossible to live like husband and wife, any compulsion to untie them will lead to social evils and disturbance of mental peace and disorder in the family life. However rigid social fabric, it is not the social system but the personal safety of the parties to the wedlock shall prevail.
J. Because the Learned Court below/ Respondent No-1 had occasions to examine the demeanour of the parties and from their manner also, the said court had not found that the marriage between the parties is alive.
K. Because of the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties.