The petitioner wife got married with the respondent husband in April 2013. The petitioner was a divorcee wife while the respondent was a bachelor. In 2013, some misunderstanding developed between them and as a result, the petitioner left the house. In 2015, the respondent filed a divorce petition under section 13(1) (I-a) of the Hindu Marriage Act claiming the wife, after the solemnisation of marriage, performed various acts of cruelty. The petitioner was living in Hyderabad, so she moved a petition for transferring of divorce suit pending before the Bombay family court.
enter site At the request of the counsel of the parties, the matter was referred to the Supreme Court Mediation Centre for the amicable settlement. A settlement agreement was filed by the respondent in which he agreed to pat Rs.12,50,000 towards full and final payment as alimony, maintenance for the past and future. The case again got listed and adjourned to enable the parties to file appropriate applications. Consequently, an application was filed under section 13-B of Hindu Marriage Act for granting the divorce by the mutual consent. It was found by the court that the petitioner wife was suffering from breast cancer. She had a lump in the breast which highly suggested malignancy. Doctors has recommended immediate surgery and chemotherapy ranging from 6 to 8 of approximately Rs. 50,000 each.
- When the wife is suffering with breast cancer and is in dire need of money be tantamount to consideration for dissolution of marriage?
- Whether the consent of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage i.e. divorce from the petitioner?
- Can the husband promise to do something which he is duty-bound to do it?
- Can the doctrine of Pre-existing duty be applied in the cases of family disputes?
According to the court, “Hindu marriage is a sacred and holy union of husband and wife by 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 her selfless services 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.” Hence, the court held that the wife seemed to agree for the mutual consent of Rs, 12,50,000 because she was in need of the money for treatment of breast cancer and it created a suspicion in the mind of Supreme Court about the consent being free.
Section 13-B talks about divorce by mutual consent and section 23 of the act casts a duty upon the court to record its satisfaction before granting a decree in suit or proceeding. The Supreme Court noted in Sureshta Devi v. Om Prakash that when the parties come to the court for mutual divorce then it must be ensured that there is mutual consent at the time of enquiry and if there is no mutual consent then the court has no jurisdiction to make a decree of the divorce.
The Court also held that the doctrine of pre-existing duty to family also matters. This doctrine says that when the party to a contract is duty bound to perform an act, then no consideration for the same can be given. Here the husband is duty-bound to care for his ailing wife. The wife had agreed for the settlement of dissolution of marriage in order to save her life. So, the husband respondent is promising to do something which he is already duty bound to do. Hence, it cannot be considered a valid consideration for the same.
Court ordered the husband to pay Rs. 5,00,000 out of Rs. 12,50,000 to his wife within a week and after wife will be cured or six months whichever is earlier, the Family court of Bombay will take the case for fresh application.
In India, a husband and wife are considered as one entity with one vision. At the time of taking the seven vows, both husband and wife vow to help each other in times of crisis, difficulty and pain. And this bond believes to, in Hindu mythology, last for seven years. Here it was evident from the facts that husband was seeking for divorce only because his wife was terminally ill, and she was need of money, so he was trying to take undue advantage of her position, but court here very diligently and very actively did not let that to happen.
The doctrine of pre-existing duty is generally used in the contracts but since the court here is not mechanistic in nature, very arduously interpreted and held that this doctrine is equally applicable to the case of family disputes. Marriage, being a holy union between the husband and wife, should always be respected and the husband and wife should always help each other when there is a need to do so.