“23.Decree in proceedings :—
(1)In any proceeding under this Act, whether defended or not, if the court is satisfied that— (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence.”
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 JUDGMENTrelations 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 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. In the 13th edition of the Pollock & Mulla Indian contract and Specific relief Act in Vol.1, it is mentioned at page 101 about the Pre-existing obligation under law which provides that:- “The performance of what one is already bound to do, either by general law or by a specific obligation to the other party, is not a good consideration for a promise; because such performance is no legal burden to the promise, but rather relives him of a duty. Neither is the promise of such performance a consideration, since it adds nothing to the obligation already existing.”
20.We can apply this principle in the present case. As JUDGMENT discussed above, it is a duty of the respondent-husband to take care of the health and safety of the petitioner-wife. In the instant case also it is a primary duty of the husband only to provide facilities for the treatment of the petitioner. 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 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 JUDGMENT (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 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.
(M.Y. Eqbal) (C. Nagappan) New Delhi December 02, 2015