It is a duty of the husband to take care of the health and safety of the petitioner-wife. In the instant case also it was a primary duty of the husband only to provide facilities for the treatment of his wife. This is a pre-existing duty of the husband, provided the husband has sufficient means and he is diligently doing his part in taking care of her. In the present case, by the mediation settlement agreement the respondent-husband promised to do something which he was already duty bound, and the same was not a valid consideration for the settlement. The wife was suffering from such a disease which compelled her to agree for the mutual consent divorce and therefore her consent is vitiated for the same.
The husband had 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 his wife after solemnization of the marriage had committed various acts of cruelty. Wife was living with her parents in Hyderabad. She moved an application before the Supreme Court for transfer of divorce suit pending before the Family Court Bombay to the Family Court at Hyderabad.
During the pendency of transfer petition, upon the request of parties matter was referred to Supreme Court Mediation Centre for amicable settlement, where a Settlement Agreement was filed. In terms of the said Settlement Agreement, the husband had agreed to pay ‘X’ amount towards full and final settlement as alimony, maintenance for past and future or any other claim of the wife. The husband had agreed to pay the agreed amount by way of Bank draft in the name of the Registrar, Supreme Court, which was payable to her at the time of passing of decree of divorce by mutual consent.
Consequently, an application was filed 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. In the said application it was mentioned that 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. Thereafter the case was adjourned at the request of wife, to enable her to file additional documents in support of her case that she is suffering with life threatening disease and the additional documents were brought on record.
From the papers filed by wife it was evident that she needed sufficient amount of money for the treatment of breast cancer and in order to save her life by getting money, she agreed for a settlement of dissolution of marriage.
On the above circumstances a question was taken up the Court 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.
It was observed that 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. A high position is bestowed on Hindu women by the Shastric law. Even as per the Hindu Law and different religious books, 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.
The wife was suffering from such a disease which 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 raised a suspicion as to whether the consent obtained from the petitioner-wife was free as required by law for granting the decree of divorce by mutual consent.
Section 23 casts a duty upon a Court to record its satisfaction before passing a decree in a suit or proceeding.
While considering the provisions of Indian Contract Act, it is provided that consent is said to be free when it is not caused by “undue influence” as defined in Section 16 of the Contract 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. Court further also referred to “Pre-existing duty doctrine” which is a principle under the Contract Act that states that if a party to a contract is under a pre-existing duty to perform, then no consideration is given for any modification of the contract and the modification is therefore voidable.
By applying the above principle in the present case, it is a duty of the husband to take care of the health and safety of the petitioner-wife. In the instant case also it was a primary duty of the husband only to provide facilities for the treatment of his wife. This is a pre-existing duty of the husband, provided the husband has sufficient means and he is diligently doing his part in taking care of her. In the present case, by the settlement agreement the respondent-husband promised to do something which he was already duty bound, and the same was not a valid consideration for the settlement.
Court accordingly directed for transfer of petition from Bombay to Hyderabad, a portion of agreed settlement value immediately to his wife for her treatment and meeting other medical expenses and the Hyderabad court was directed to dispose of the case with fresh application as may be filed under Section 13B for divorce by mutual consent.
[Vennangot Anuradha Samir vs. Vennangot Mohandas Samir]
(SC, 02.12.2015 – Transfer Petition (Civil) No. 702 of 2015)