Does agreement of separation between married couple amount to divorce? Madhya Pradesh High Court answers

The Madhya Pradesh High Court recently said that an agreement of separation signed by a married couple has no legal sanctity and does not amount to divorce..Justice Gurpal Singh Ahluwalia made the observation while dealing with a petition moved by a husband and his parents for quashing of a case registered on his wife’s complaint in 2023. One of the grounds in the petition was that their relationship had already come to an end after the execution of an agreement of separation. However, the Court said it cannot be relied upon in the present case.“The parties are not Muslim by religion, therefore there cannot be any divorce by mutual consent without approaching the Court. How the Notary could notarize such an agreement, is also a matter of concern. A Notary cannot grant divorce by executing the agreement of separation,” the Court said..The Court further observed that since the agreement of separation has no sanctity in the law, it cannot be said that any divorce has taken place.Even otherwise, if any divorce has taken place, the case under Section 498-A (Husband or relative of husband of a woman subjecting her to cruelty) of Indian Penal Code (IPC) can be lodged in respect of the cruelty meted out to the victim prior to divorce, it said.“But that situation has not arisen in the present case because no divorce has taken place between the parties,” the Court noted..The wife in her police complaint had stated that they had gotten married on April 21, 2022 and sufficient dowry was paid at the time of their marriage. However, she alleged that soon after the wedding, her husband and in-laws started harassing her on the ground that she brought less dowry. She was also assaulted by the accused and she forced her to return to her parental home, the complaint alleged. .The husband sought quashing of the case and claimed that the allegations are general in nature and that the wife had given an undertaking that she would not take any legal recourse against him. However, the Court said that such an agreement is contrary to Section 28 of the Contract Act as any contract prohibiting a party from taking legal action is a void contract.“Furthermore, as per Section 41 of Specific Relief Act, no injunction can be granted thereby restraining a person from taking legal recourse,” it added.The Court also said the application moved by complainant under Section 11 of Hindu Marriage Act for declaring marriage void would not have any adverse effect on the case. On the contrary it supports the allegations made by the complainant in her FIR, it opined..On the merits of FIR, the Court said there are specific allegations of committing cruelty on account of non-fulfilment of demand of dowry.“Although it was not submitted by counsel for the applicants but it is also alleged in the application that respondent No.2 was already married prior to the marriage with applicant No.1 and accordingly, applicants have filed copy of marriage certificate issued by Vaidic Vivah Avam Sanskar Samiti, Indore. The applicants have relied upon a private document and this Court cannot take judicial notice of the same,” it added.Thus, the Court rejected the petition. .Advocate Manoj Tiwari represented the petitioners.Public Prosecutor Mohan Sausarkar appeared for the State.[Read Judgment]