Family Court Cannot Grant Divorce Without A Trial Assuming Marriage Is Dissolved In Parties’ Hearts And Minds: Bombay High Court

A division bench of Justice RD Dhanuka and Justice Gauri Godse set aside a divorce decree on admission passed by the family court observing –

“the Family Court has passed the decree of divorce contrary to Section 151 of CPC by assuming that the Appellant and the Respondent are intending to separate as marriage has been dissolved in their mind and heart. None of the parties have led any evidence. Allegations and counter allegations are made against each other. The learned Family Court could not have done guess work and could not have come to the conclusion that the marriage was dissolved in their mind and heart while passing the decree of divorce”, the court held.

The court held that the family court cannot pass divorce decree of admission under section 151 of the CPC when there is a specific provision for decree of admission under Order 12 Rule 6 of CPC when certain conditions are met.

“In view of the fact that, there is a specific provision for passing decree under Order 12 Rule 6 of CPC on satisfaction of conditions provided under the said provision, the Family Court could not have invoked Section 151 of CPC.”

The court also reiterated that a judgment on admission can only be made when there is unequivocal admission by the party without reserving any rights. 

The appellant-wife filed a divorce petition in November 2017 on grounds of cruelty and sought maintenance from the respondent-husband for herself and their son. The husband denied the allegations and opposed the petition.

In 2021, the husband sought a divorce on admission which was opposed by the wife.

The family court granted divorce decree in February 2022 but kept the prayers for maintenance and permanent alimony pending. Therefore, the wife filed the present family court appeal.

The respondent contended that the marriage between the parties was severed and not reconciled for quite some time. He contended that the appellant clearly admitted that their status as husband and wife is severed in her reply affidavit.

He also argued that the appellant has withdrawn the domestic violence case and he filed an application for divorce by admission only after withdrawal of the case.

The court noted that the wife made serious allegations of cruelty against the husband and invoked section 13(1)(a) of the Hindu Marriage Act, 1955. The husband denied the allegation of cruelty and made counter allegations against his wife; the court observed.

The court noted that neither the wife withdrew the allegations of cruelty nor the husband accepted them.

In her affidavit before the family court, the appellant-wife had argued that their status as husband-wife would be severed after divorce decree and thus order of maintenance and alimony cannot be passed after divorce.

The court agreed with this contention and opined that the family court misconstrued this statement as an admission.

“We are not inclined to accept the submission of the learned counsel for the Respondent (husband) that the order of maintenance and permanent alimony could be passed in these circumstances…”, the court held.

None of the parties have led any evidence the court noted adding that the family court could not have done guess work and concluded that the marriage was dissolved in their minds and hearts.

The court added that when the parties agree for divorce and do not make allegations against each other, or withdraw any allegation made, they could have filed for a mutual divorce. However, no petition for divorce by mutual consent was filed in this case, the court noted.

As per Order 12 Rule 6, the party who has allegedly made an admission is entitled to an opportunity to explain that admission at the stage of trial, the court stated. “Such allegations made by the parties against each other could not have been brushed aside in such a summary manner as it is done by the Family Court”, the court held.

The court perused the affidavits filed by the wife and held that she made no admission for decree of divorce.

Therefore, the court set aside the divorce decree and restored the petition to be heard on its own merits expeditiously.

Case no. – Family Court Appeal No.24 Of 2022

Case Title – Mansi Bhavin Dharani v. Bhavin Jagdish Dharani

Citation: 2023 LiveLaw (Bom) 194