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2001 DIGILAW 369 (DEL)

JAYANT AMRITANAND SHUKLA v. MALA SHUKLA

2001-09-06

S.N.KAPUR

body2001
S. N. Kapoor ( 1 ) ( 2 ) THIS court tried its level best to bring about an amicable settlement, but unfortunately, failed. ( 3 ) THERE is no dispute about the fact that the first motion was moved and the parties made a statement before the court but the respondent/wife is not willing to continue and she has withdrawn her consent. Some negotiations did take place but ultimately failed. ( 4 ) THE matter appears to be covered by the judgment of Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25 . In the light of this judgment, either of the parties to the petition under Section 13 (l) (b) of Hindu Marriage Act, could unilaterally withdraw his/her consent at any time till passing of the decree and the court would not get any jurisdiction to pass the adverse decree against the wishes of either the husband or the wife. ( 5 ) THE learned counsel for the appellant, however, submits that there are certain observations of the Supreme Court in Ashok Hurra v. Rupa Bipin zaveri, (1997) 4 SCC 226 doubting the ratio laid down in Smt. Sureshta Devi v. Om Prakash (supra) in para 16 that the Supreme Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce was passed to withdraw the consent given to the petition. Following observations in para 16 are relevant : 16. ". . . In the light of the clear import of the language employed in section 13-B (2) of the Act, it appears that in a joint petition duly filed under Section l3-B (1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B (1) and still pending shall be adjudicated by the court as provided in Section 13-B (2) of the Act. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B (1) and still pending shall be adjudicated by the court as provided in Section 13-B (2) of the Act. It appears to us the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with section 13-B (2) of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact-situation herein. The decision in Sureshta devi case may require reconsideration in an appropriate case. We leave it there," (Emphasis supplied) ( 6 ) LEARNED counsel for the respondent submitted that that very matter had been adjourned and is to be listed for hearing after judgment in supreme Court Bar Association v. Union of India. WP (C) No. 200/95 relating to the scope of powers of the Supreme Court under Article 142 of the constitution. That matter is still pending. What the Supreme Court could do under Article 142, this court cannot do for it does not have any such discretion to do "complete Justice in exercise of the powers under Article 142 of the Constitution". ( 7 ) SO long as the Smt. Sureshta Devi v. Om prakash (supra) is concerned, it may be mentioned that this court could keep the matter pending and could await the Judgment of the Supreme Court in ashok Hurra v. Rupa Bipin Zaveri (supra ). But in any case, this court would not be able to exercise the jurisdiction under Article 142 of the constitution. ( 8 ) THERE is no dispute about one aspect that a sum of Rs. 25 lakhs has been received by the respondent. She has been given possession of Second floor of House NO. A-53, Nizamuddin East where the respondent is living along with the two children of the parties. It was also agreed that the plot of 500 sq. yds. in Bangalore was being given but it is stated by learned counsel for the respondent that neither the house nor the plot had yet been transferred in the name of the respondent or either of the two children. It was also agreed that the plot of 500 sq. yds. in Bangalore was being given but it is stated by learned counsel for the respondent that neither the house nor the plot had yet been transferred in the name of the respondent or either of the two children. The husband earlier offered to add Rs. 10 lakhs more in order to satisfy the claim made by the respondent but subsequently the petitioner had also agreed to pay maintenance at the rate of Rs. 30,000. 00 per month which is being paid and that amount is being received. However, the respondent is now demanding Rs. 65 lakhs in lumpsum in lieu of payment of maintenance. It could be just to secure the future of the children and to enhance the sense of security, especially when there are chances that the petitioner may marry another woman. ( 9 ) HOWEVER, now things had reached a stage where probably the parties are in a mood to win a point and lose the battle. I feel helpless to help the parties. Consequently, I feel that the appeal has to be dismissed in the light of the judgment of smt. Sureshta Devi v. Om Prakash (supra ). ( 10 ) THE petitioner claims to have got insurance policy of for the benefit of the children for the purpose of higher education of US$ 1. 52 lakh. A copy of the policy should be given to the counsel for the respondent. ( 11 ) HOWEVER, in ordinary course, this court might have insisted that none of the parties should be allowed to take advantage of giving consent taking amount and the rescinding thereafter. But noting that the transfer of the property has not yet taken place and the respondent is living along with the children in Nizamuddin property, I do not think that any order can be passed and should be passed on analogy of Section 64 of the Contract Act, for the respondent is entitled to get a residential accommodation and maintenance. ( 12 ) WITH these observations, the petition is dismissed.