Wife's withdrawal of consent for mutual divorce not ground to quash cruelty case: Bombay High Court

The Bombay High Court on Tuesday ruled that a wife’s withdrawal of consent for a mutual divorce does not constitute an abuse of the legal process and cannot be used as a ground to quash the ongoing cruelty proceedings filed by her against her husband.

The Court highlighted the wife’s statutory right to retract her consent for a divorce even after a settlement, and stated that this right must be respected.

A Bench of Justices A S Gadkari and Neela Gokhale referred to Section 13B of the Hindu Marriage Act, which allows either party to withdraw consent for a divorce before the decree is passed.

“This being the settled legal position of Section 13B of the Hindu Marriage Act (HMA), we have no hesitation in holding that the act of the Respondent No. 2 (wife) in reneging from the Settlement Agreement cannot be said to be an abuse of the process of law to justify quashing the criminal proceedings pending against the Petitioner. The mere fact that the learned Single Judge of the Delhi High Court held the Respondent No. 2 in contempt for failing to join the Petitioner in filing a Second Motion need not deter us from endorsing the statutory right of the Respondent No. 2,” the Court said.

The Court further explained that the distinguishing feature of Section 13B of the Hindu Marriage Act is that it recognizes the unqualified and unfettered right of a party to unilaterally withdraw consent or reconsider a decision to apply for divorce by mutual consent notwithstanding any undertaking given in any legal proceeding or recorded in any settlement in or outside the court.

The dispute between the parties arose in 2015 when the petitioner-husband, wed the respondent-wife in an Arya Samaj ceremony. The marriage was marred by accusations of physical and emotional abuse from the wife, including claims that the petitioner’s family had taken her jewelry worth ₹35 lakh on the first day of marriage and subjected her to dowry harassment.

The wife also alleged that her mother-in-law taunted her for not bringing enough dowry and that the petitioner allegedly abandoned her when she suffered a slip disc. Over the next two years, their relationship deteriorated further, with the wife accusing the petitioner of more physical abuse, particularly when he was intoxicated.

In March 2017, the wife accused the petitioner of physically assaulting her after an argument, during which she was allegedly searched for stolen money. She claimed that such incidents became frequent and in April 2017, the petitioner left for Faridabad, citing a family emergency and stating he had no intention of returning.

The wife reported that her husband spread false rumors about her mental health, accusing her of schizophrenia, and also tried to remove her from their shared flat in Mumbai. Later that year, the wife accused the petitioner and his family of demanding ₹2 crore through extortion and making threats of violence. In 2018, she filed an FIR against the petitioner and his family, accusing them of dowry harassment, physical cruelty, and threats, including taking her jewelry worth ₹45 lakh without intending to return it.

Alongside the criminal proceedings, the couple entered into divorce proceedings and in November 2022, reached a settlement. They decided to pursue a mutual divorce under Section 13B of the Hindu Marriage Act. The settlement included provisions for the petitioner to pay maintenance and transfer the shared flat to the wife. The terms also included an agreement to give consent to quash the ongoing criminal proceedings.

However, disputes soon arose due to the petitioner’s failure to comply with these terms, particularly regarding the maintenance payments and the transfer of the property. In January 2024, the wife, who had already paid ₹10 lakh toward flat society maintenance charges, withdrew her consent to proceed with the mutual divorce, citing the petitioner’s non-compliance with the settlement agreement.

As a result, she refused to participate in the second motion for divorce, prompting the petitioner to challenge the continuation of the criminal proceedings against him.

The petitioner’s lawyer argued that the wife’s refusal to proceed with the divorce was an abuse of the legal process. He claimed that her actions violated the terms of the settlement agreement and was nothing but abuse of law.

However, the wife argued that her withdrawal of consent was a legitimate exercise of her statutory rights under the Hindu Marriage Act.

She stated that she had complied with the settlement terms to the extent she could and had already made significant payments toward the maintenance charges for the flat. She further argued that it was the petitioner who had failed to fulfill his obligations, particularly regarding the transfer of the flat and the promised alimony, and therefore, she was justified in reconsidering her decision to proceed with the divorce.

The Court reiterated that the statutory right to withdraw consent for a divorce under Section 13B of the HMA is absolute and cannot be overridden.

It also emphasized that any interpretation that undermines this right would not only impinge the jurisdiction of the court but will also encroach upon or frustrate a statutory right vested in a party under Section 13B(2) of the Hindu Marriage Act and go against the very spirit of the provision.

The Court further clarified that non-compliance with the terms enumerated in an affidavit/ undertaking supporting the first motion under Section 13B(1) of the Hindu Marriage Act will reflect on the conduct of the party only if the said party has benefited from such consent.

In this case, the Court pointed out that it was the petitioner, not the respondent-wife, who benefited from the consent terms in the first motion.

“Hence, failing to give consent for quashing the present FIR pursuant to the terms of the First Motion is not an abuse of the process of law,” the Court held.

Based on these findings, the Court dismissed the petition to quash the criminal proceedings permitting the criminal case against the petitioner to continue.

Advocate Prabhjit Jauhar along with advocate Pooja Jalan instructed by advocate Bhomesh Bellam appeared for the husband.

Additional Public Prosecutor Madhavi H Mhatre appeared for the State.

[Read Judgment]