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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO. 702 OF 2015

Vennangot Anuradha Samir            …..Petitioner

versus

Vennangot Mohandas Samir           …Respondent

O R D E R

M.Y. EQBAL, J.

Heard  learned  counsel  appearing  for  the  parties  and  

perused the records along with the affidavits and petitions.

2. Admittedly,  the  marriage  of  the  petitioner  with  the  

respondent was solemnized in April, 2010 according to Hindu  

Vedic Rites.  At the time of marriage, the respondent-husband  

was a bachelor and the petitioner-wife was a divorcee.  It was  

a love marriage after both of them came in contact with each  

other  in  October,  2006.   In  2013,  some  misunderstanding  

developed  between  the  petitioner  and  the  respondent  as  a  

result of which the petitioner left the house. 1

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3. In  2015,  the  respondent-husband  filed  a  suit  for  

dissolution of marriage by a decree of divorce under Section  

13(1)(1a) of  the Hindu Marriage Act on the ground that the  

petitioner-wife  after  solemnization   of  the  marriage  had  

committed various acts of cruelty.  Admittedly, the petitioner  

is  living  in  Hyderabad  with  her  parents.   The  petitioner,  

therefore, moved an application before this Court for transfer  

of divorce suit pending before the Family Court Bombay to the  

Family Court at Hyderabad.

4. The  transfer  petition  was  listed  before  this  Court  on  

28.08.2015,  when,  at  the  request  of  the  counsel  for  the  

parties, the matter was referred to Supreme Court Mediation  

Centre for amicable settlement.  Before the Mediation Centre,  

a Settlement Agreement was filed on 26.10.2015.  In terms of  

the  said  Settlement  Agreement,  the  respondent-husband  

agreed to pay Rs.12,50,000/- (Twelve Lakhs Fifty Thousand  

only)  towards  full  and  final  settlement  as  alimony,  

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maintenance  for  past  and future  or  any other  claim of  the  

petitioner.   The respondent-husband had agreed to pay the  

said amount of Rs.12,50,000/- (Twelve Lakhs Fifty Thousand  

only),  by  way  of  Bank  draft  in  the  name  of  the  Registrar,  

Supreme Court, which shall be paid to the petitioner-wife at  

the time of passing of decree of divorce  by mutual consent.   

5. On 6th November, 2015, the case was again listed along  

with the office report and Settlement Agreement.  The matter  

was  adjourned  to  enable  the  parties  to  file  appropriate  

application.

6. Consequently,  an application was filed purported to be  

under Section 13B of the Hindu Marriage Act with a prayer to  

treat  the  divorce  petition  pending  before  the  Family  Court,  

Bombay as an application under Section 13B of the Act and  

treat  the  present  application  as  second  motion  and  grant  

divorce by way of mutual consent.

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7. In the said application it was mentioned that petitioner-

wife is suffering life threatening disease and urgently requires  

funds  for  her  medical  treatment  and  also  that  she  has  to  

depend on herself for proper care.

8. On 17.11.2015, the case was adjourned at the request of  

the petitioner-wife, to enable her to file additional documents  

in  support  of  her  case  that  she  is  suffering  with  life  

threatening  disease.  In  compliance  thereof  additional  

documents have been brought on record.  

9. Perusal  of  the  document  i.e.  the  medical  certificate,  

reveals  that  a  lump in  the  breast  was  found  which  highly  

suggests  malignancy.  The  doctors  recommended  for  an  

immediate  surgery  and  chemotherapy  ranging  from  6  to  8  

cycles of adjuvant. It is mentioned that approximate costs per  

cycle will cost about Rs. 50,000/-.

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10. From the above mentioned admitted facts, it is evident  

that the petitioner needs sufficient amount of money for the  

treatment of breast cancer.  Hence, it cannot be ruled out that  

in order to save her life by getting money, she agreed for a  

settlement  of  dissolution  of  marriage.   On  these  facts,  a  

question that came in our mind is as to whether the Court  

would be justified in granting a decree for divorce on the basis  

of settlement when the wife is suffering with breast cancer and  

is in need of  money for  her treatment and can that  be the  

consideration for dissolution of marriage.

11. Hindu marriage is a sacred and holy union of husband  

and wife by virtue of 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 the  

selfless service 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  

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integral part of her husband’s life and activities.  Colebrooke  

in  his  book “Digest  of  Hindu Law Volume II”  described the  

status of the wife thus:-

“A  wife  is  considered  as  half  the  body  of  her  husband, equally sharing the fruit of pure and  impure acts:- whether she ascend  the pile after  him or survive for the benefit  of her husband,  she is a faithful  wife.”

12. Further  Colebrooke  in  his  book  Digest  of  Hindu  Law  

Volume-II quoted the Mahabharata at page 121 thus:-

“Where females are honoured, there the deities  are  pleased;  but  where  they  are  unhonoured  there all religious acts become fruitless.”

This clearly illustrates the high position which is  bestowed on Hindu women by the Shastric law.

13. From  the  study  of  Hindu  Law  and  different  religious  

books, it cannot be disputed that after marriage law enjoins  

the  corresponding  duty  on  the  husband  to  look  after  her  

comforts and not only to provide her food and clothes but to  

protect her from all calamities and to take care of her health  

and safety.

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14. In the peculiar facts of the present case if we consider the  

instant settlement, which is nothing but a contract to dissolve  

the marriage, the Court has to satisfy itself that the contract is  

legal and valid in the eye of law.  From perusal of the facts of  

the case and the development which has taken place in the  

present  case,  it  seems  that  the  petitioner-wife  agreed  for  

divorce  by  mutual  consent  on  the  condition  that  the  

respondent-husband will pay her Rs.12,50,000/- as full and  

final settlement. The petitioner-wife is suffering from such a  

disease  which  has  compelled  her  to  agree  for  the  mutual  

consent divorce. The fact that petitioner-wife is ready for the  

mutual  consent  divorce  after  knowing  about  her  medical  

condition raises a suspicion in our mind as to whether the  

consent obtained from the petitioner-wife is free as required by  

law for granting the decree of divorce by mutual consent.  

15. Section  13-B  of  the  Hindu  Marriage  Act  makes  a  

provision of divorce by mutual consent, which reads as under:-

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“13B Divorce by mutual consent— (1) Subject to the provisions of this Act a petition for  dissolution of marriage by a decree of divorce may be  presented to the district court by both the parties to a  marriage  together,  whether  such  marriage  was  solemnised before or after the commencement of the  Marriage Laws (Amendment)  Act, 1976 (68 of  1976),  on the ground that they have been living separately for  a period of one year or more, that they have not been  able  to  live  together  and  that  they  have  mutually  agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier  than six months after the date of the presentation of  the petition referred to in sub-section (1) and not later  than  eighteen  months  after  the  said  date,  if  the  petition is not withdrawn in the meantime, the court  shall, on being satisfied, after hearing the parties and  after  making  such  inquiry  as  it  thinks  fit,  that  a  marriage has been solemnised and that the averments  in  the  petition  are  true,  pass  a  decree  of  divorce  declaring the marriage to be dissolved with effect from  the date of the decree.”

16. Section  23  casts  a  duty  upon  a  Court  to  record  its  

satisfaction before passing a decree in a suit or proceeding.  

Section 23(1)(bb) is  also worth to be quoted hereinbelow:-

“23.Decree in proceedings :— (1)In  any  proceeding  under  this  Act,  whether  

defended or not, if the court is satisfied that— (a) …………………………………………… (b) …………………………………………… (bb) when a divorce is sought on the ground of  mutual consent, such consent has not been  obtained by force, fraud or undue influence.”

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17. This Court elaborately discussed the aforesaid provisions  

in the case of Sureshta Devi vs. Om Prakash, (1991) 2 SCC  

25, and observed thus:-

“……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.”

18. If we consider the provisions of Indian Contract Act,  it  

provides that consent is said to be free when it is not caused  

by “undue influence” as defined in Section 16 of the Act.  The  

contract is said to be induced by “undue influence” where the  

relations subsisting between the parties are such that one of  

the parties is in a position to dominate the will of the other  

and uses that position to obtain an unfair advantage over the  

other.   

19. One more doctrine is to be taken into consideration i.e.  

“Pre-existing  duty  doctrine”.   It  is  a principle  under the  

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care of her.  In the present case, by the settlement agreement  

the respondent-husband is promising to do something which  

he is already duty bound, is not a valid consideration for the  

settlement.

21. In the peculiar facts and circumstances of the case, we,  

therefore, pass the following order:-

(i) The transfer petition for the transfer of matrimonial suit  

being  petition  No.A-642 of  2015 pending  before  the  Family  

Court at Bombay, Maharashtra to Family Court at Hyderabad  

is  allowed.   The  petition  is  ordered  to  be  transferred  

accordingly.  The transferor court shall forthwith transmit the  

record of the aforesaid case to the transferee court.

(ii) The respondent-husband shall pay a sum of Rs.Five Lacs  

(Rs.5,00,000/-)  out  of  Rs.12,50,000/-  to  the  petitioner-wife  

immediately  within  a  week  for  her  treatment  and  meeting  

other medical expenses.

(iii) After  the  petitioner  is  fully  cured  from the  disease  or  

within six months whichever is  earlier,  the Family Court at  

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Hyderabad,  where  the  divorce  petition  is  ordered  to  be  

transferred,  shall  take  up  the  case  along  with  a  fresh  

application that may be filed by the parties under Section 13B  

for  divorce  by  mutual  consent.   After  compliance  of  all  the  

formalities,  the Family  Court  at  Hyderabad shall  dispose of  

those  petitions  in  accordance  with  law  after  recording  its  

satisfaction  and  giving  opportunity  of  hearing  to  both  the  

parties.

……………………J. (M.Y. Eqbal)

…………………….J. (C. Nagappan)

New Delhi December 02, 2015  

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