MUMBAI: A "deed of divorce" signed by a notary is not an authorized divorce under the law, the Bombay high court clarified, surprised that a family court judge had accepted it as valid.
In a peculiar case that came up in the Bombay high court as an appeal against an order passed by the Bandra family court in October, an educated Mumbai couple were under the belief that their marriage was lawfully dissolved two-and-half years ago by an alleged 'divorce deed'. Their marriage, solemnized in 2007, had run into trouble with differences cropping up between them. On advice, they prepared a 'deed of divorce' which a notary—an advocate licensed by the state to authenticate legal documents—signed in 2011.
The wife was soon remarried to a DTP operator in the US. It was only when the US authorities denied her a visa on the ground that she was unable to produce a valid divorce decree that she realized that her earlier marriage still legally existed.
Her 'former' husband agreed to file for a mutual consent divorce before the family court. Their joint petition for divorce also sought waiver of the mandatory six-months cooling off period. She wanted to process her visa swiftly and gave details of the fact that she and husband had lived as a divorced couple since 2011.
The family court however rejected their plea for divorce and observed that they were already divorced through the mutual "agreement" as "part of the custom". The agreement, it said, can be set aside only if it was a result of "fraud or misrepresentation".
The couple then moved the Bombay high court against the family court order. The HC was critical of the family court order and its reasoning. It directed the family court to decide the case expeditiously on January 2 and waive the six-months cooling period. The HC said since both had acted on the "bona fide belief" that their marriage had legally ended with the alleged "deed" and had remarried, a reconciliation or reunion was ruled out.
The HC bench of Justices V K Tahilramani and V L Achliya said the case was "very peculiar and unusual".
"Marriage under the Hindu law is not considered a contract between two individuals. It is treated as a sacrosanct relation between two human beings, placing certain obligations and duties... No provision in Hindu law gives either party to the marriage an automatic right of divorce."
The HC said the family court when faced with a mutual consent divorce plea "must confine" itself to inquire whether there was a valid marriage and if the couple was unable to live together for over a year and had mutually sought the divorce.
However, the HC came to the couple's rescue. Justice Achliya who penned the judgment which was delivered in December 23 said the six-month period, intended to provide the couple time for a final rethink, must be waived in the interest of justice. The HC said courts are meant to impart justice by overcoming technical difficulties. "The waiver though not specified in law, be read into it as the main object of the provision is to liberalize divorce," and added, "It was never the intention of the legislature that such period is to be observed irrespective of the facts; where a marriage has irretrievably broken and there are no chances of a reunion, as it would be futile to wait for six months."
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