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2009 DIGILAW 1707 (PNJ)

Kusum Uppal v. Vishal Uppal

2009-09-25

VINOD K.SHARMA

body2009
JUDGMENT VINOD K. SHARMA, J. This is wife's appeal against the judgment and decree dated 12.8.2006 passed by the learned District Judge, Gurgaon on a petition filed by wife/appellant under section 13-B of the Hindu Marriage Act, 1955 (for short the Act). The appellant has also challenged the order dated 9.4.2008 passed by the learned Additional District Judge, Gurgaon vide which application moved by the appellant for setting aside the judgment and decree dated 12.8.2006 was ordered to be dismissed. The respondent had filed a petition under section 13(1)(ia) of the Act against the appellant for the grant of decree of divorce on the ground of cruelty. The petition was contested and issues were framed on 24.10.2005 and thereafter part of evidence was also recorded. On 12.8.2006 case was fixed for settlement as on the previous date time was sought by the parties for settlement. On 12.8.2006, an application was moved by the respondent for conversion of pending petition into one under section 13-B of the Act. It was averred in the application that the parties have compromised and have agreed that they would seek divorce with mutual consent by getting the present petition amended. It was also mentioned that the parents and well wishers tried their level best make the parties reconciled but on account of in compatibility of temperament it was not possible for the parties to live together as husband and wife. Therefore, the parties decided to gracefully part ways. It was also pleaded that it was essential and in the interest of justice that the petition be converted into one under section 13-B of the Act so that there is no unnecessary wastage of time and energy of the parties and all concerned. On the application learned District Judge, Gugaon was pleased to pass the following order:- “Parties have filed an application for converting the petition pending under section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) into Section 13-B of the Act submitting that parties have settled their controversies and have mutually decided to seek divorce by mutual consent. Petition under section 13 (1)(ia) of the Act was filed on 12.5.2005 by husband Vishal and parties are litigating since then. Petition under section 13 (1)(ia) of the Act was filed on 12.5.2005 by husband Vishal and parties are litigating since then. Since parties are litigating of the last more than six months and are living separate for the last more than one year, therefore, application for conversion of petition from section 13 (1)(ia) to section 13-B of the Act is allowed. Petition under section 13-B of the Act has been filed seeking divorce by mutual consent. Statements of parties have been recorded. Six months period is dispensed with. Petition has been allowed vide separate judgment of even date. File be consigned to record room.” The application was accompanied by a petition under section 13-B of the Act for dissolution of marriage by a decree of divorce by mutual consent which was signed by both the parties and their counsel. Statements of the appellant as well as the respondent were also recorded. Statement made by the appellant reads as under:- “I was married to Vishal on 13.12.2002 at Groovie Hotel, Gurgaon according to Hindu rites and customs. We lived together and cohabited as husband and wife at Gurgaon. One female child namely Twinkle was born out of the union. Because of temperamental differences we could not adjust with each other and have decided to seek divorce by mutual consent. We are living separately since May 2005. My claim regarding dowry and istridhan etc. has been settled and I have not received anything from petitioner No2. I have given my consent of my free will and without any pressure or coercion. The custody of child shall remain with petitioner No.2. I shall have visitation rights on the alternative Sunday. I shall take the child in Police Post New Colony, Gurgaon on 12 Noon and to carry her along for four hour and shall return the child after four hours at Police Post New Colony, Gurgaon at 4.00 PM.” Whereas the statement of the respondent reads as under:- “I was married to Kusum on 13.12.2002 at Groovie Hotel, Gurgaon according to Hindu rites and customs. We lived together and cohabited as husband and wife at Gurgaon. One female child namely Twinkle was born out of the union. Because of temperamental differences we could not adjust with each other and have decided to seek divorce by mutual consent. We are living separately since May, 2005. The claim regarding dowry and istridhan etc. We lived together and cohabited as husband and wife at Gurgaon. One female child namely Twinkle was born out of the union. Because of temperamental differences we could not adjust with each other and have decided to seek divorce by mutual consent. We are living separately since May, 2005. The claim regarding dowry and istridhan etc. has been settled as petitioner No.1 has not received anything from me. I have given my consent of my free will and without any pressure or coercion. The custody of child shall remain with me. Petitioner No.1 shall have visitation rights on the alternative Sunday. She will take the child in Police Post New Colony, Gurgaon on 12 Noon and to carry her along for four hour and shall return the child after four hours at Police Post New Colony, Gurgaon at 4.00 PM. I will withdraw my criminal complaints before the decision of the present litigation. Petitioner No.1 shall not take the child to her mother's house.” Order reproduced above was thereafter passed by the learned District Judge, Gurgaon. The appellant thereafter filed an appeal before this court. However, the appeal was disposed of with liberty to the appellant to initiate necessary proceedings for setting aside the judgment and decree. The appellant thereafter moved an application for setting aside the judgment and decree primarily on the ground that the Hon'ble Court did not grant time to the parties to think over the real matter in controversy between them and that the consent of the appellant was not of her free will and also that the judgment and decree was passed without any application for dispensing with the period of 6 months as provided under section 13-B of the Act and therefore, the judgment and decree were not sustainable in law. That the appellant was still ready and willing to live with the husband as it related to the life of the appellant and child as well, and further that she has lost her job under the constant pressure of the respondent by resigning from her private job; that the respondent along with her brother-in-law had given threat of life to the male members i.e. Suhail Kumar her brother and that real brother of the appellant was killed in the year 2000 during the pendency of the divorce petition with real sister of the appellant. The consent was said to be not of free will. That false complaints were filed by the respondent against her to pressurize her to give him divorce. That for dispensing with a period of 6 months it was necessary to explain the urgency to get divorce on the same day but nothing in this regard was mentioned in the order. It was, thus, pleaded that the consent was obtained by threat and force. The application was contested. The application was dismissed by the learned Additional District Judge, Gurgaon. Learned Additional District Judge rejected the plea of the appellant that the period of six months was illegally waived of by the learned District Judge by holding that it was admitted fact that the parties moved for conversion of a petition under section 13(1) (ia) of the Act into a petition under section 13-B of the Act on 12.8.2008 and moved an application for waiving of six months' time on which learned District Judge allowed both the applications and recorded the statements of the parties and then granted a decree of divorce by mutual consent on the same day. The learned matrimonial court was pleased to hold that if the period was wrongly waived then the remedy was to file an appeal, and further, that there was no illegality in waiving of six months' period. Support in this regard was drawn by the learned Additional District Judge from the judgment of this court in the case of Malwinder Kaur @ Pappu Vs. Devinder Pal Singh, 2003 (1) HLR 490, wherein this court keeping in view the fact that the parties were litigating in divorce proceedings for a period of five years, the period of six months was dispensed while allowing divorce petition by way of mutual consent. Reliance was also placed on the judgment of Hon'ble Madhya Pradesh High Court in the case of Smt.Babita @ Sushma Vs. Santosh 2002 (2) HLR 388 and decision of this court in CR No.5297 of 2007 titled Aditi Khanna Vs. Udayan Khanna decided on 5.11.2007. Plea of the appellant that her consent was not voluntary and was obtained by force and threat etc., was also held to be without any force in view of the fact that the allegations were denied by the respondent. Udayan Khanna decided on 5.11.2007. Plea of the appellant that her consent was not voluntary and was obtained by force and threat etc., was also held to be without any force in view of the fact that the allegations were denied by the respondent. The learned matrimonial court held that in order to determine the question it had to be seen whether on 12.8.2006 statement was made voluntary or under threat. The learned court proceeded to hold that the proceedings in a court of law are sacrosanct. Statements of the parties were recorded in court. On 9.8.2006 both the parties had sought date for settlement and the case was adjourned to 12.8.2006 when an application was moved for conversion of petition under section 13-B of the Act and an application was moved by both the parties for waiving of six months' period. Thereafter statements of both the parties were recorded and then a decree of divorce was passed. The learned court, therefore, held that it could not be believed that the appellant was under pressure, threat or coercion as no such allegations were made on that day. The learned court also noticed that it was not understandable why the applicant signed the application for waiving of six months' period. The learned court also did not accept the plea that because of non-grant of permanent alimony the consent is to be taken that it was taken under pressure, for the reasons that it was agreed that daughter was to be kept by the respondent/husband. It was also contended, that the respondent had agreed to withdraw the criminal complaint which he did not. The learned court did not give any importance to non-withdrawing the complaint because of the shifting stand taken by the appellant. It may be noticed here that both the complaints stand withdrawn. The learned court further held that the proceedings recorded in the court are to be respected, and dismissed the application. The learned court did not give any importance to non-withdrawing the complaint because of the shifting stand taken by the appellant. It may be noticed here that both the complaints stand withdrawn. The learned court further held that the proceedings recorded in the court are to be respected, and dismissed the application. Learned counsel for the appellant has challenged the judgment and decree as well as the order passed on an application for recall of the judgment and decree on the plea that though it was mentioned that there was compromise between the parties, but no such compromise was placed on record, therefore, the decree of divorce by mutual consent, in the absence of written compromise, could not have been granted, especially on the same day without giving the parties time to think over the matter for a statutory period of six months. The reference was also made to Section 13-B of the Act. This plea of the learned counsel for the appellant deserves to be noticed to be rejected as the application for conversion of petition from one under section 13(1)(ia) to section 13-B was also accompanied by a petition under section 13-B of the Act which was not only signed by the appellant but also by her counsel. It could not, therefore, be believed that the petition was field without her free consent. Absence of compromise on record cannot be said to be fatal, as the compromise could be oral also. Learned counsel for the appellant thereafter vehemently contended that the learned Additional District Judge proceeded on wrong presumption that there was an application moved by the parties for waiving of the statutory period of six months, though there was no such application moved by the parties. Learned counsel for the appellant by placing reliance on a Division Bench of this court in the case of Charanjit Singh Mann Vs. Neelam Mann 2006 (2) RCR (Civil) 497 contended that six months' waiting period is mandatory from the date of presentation of the petition, and the court cannot waive off this period. Learned counsel for the appellant also placed reliance on the judgment of this court in the case of Ranjna Vs. Anil Kumar (2008-2) PLR 302 to contend that for waiving of statutory period some exceptional circumstances were required to be disclosed. Learned counsel for the appellant also placed reliance on the judgment of this court in the case of Ranjna Vs. Anil Kumar (2008-2) PLR 302 to contend that for waiving of statutory period some exceptional circumstances were required to be disclosed. There were no such exceptional circumstance mentioned in the order passed by the learned District Judge, therefore, the judgment and decree passed by the learned District Judge granting decree of divorce by mutual consent could not be sustained. Mr. R.S. Madan, learned counsel appearing on behalf of the respondent, on the other hand, contended that though there is no written application on record, but the order passed by the learned District Judge clearly shows that a request was made of waiving of statutory period of six months, and further a specific order was passed in this regard. Application can also be oral. The exceptional circumstances existed in the present case i.e. parties were earlier litigating for the grant of decree of divorce on the ground of cruelty. In support of this contention learned counsel for he respondent placed reliance on the judgment of this court in the case of Ravinderpal Singh Vs. Smt.Ranjit Kaur 2005 (1) RCR (Civil) 115, wherein this court was pleased to lay down that if parties to the marriage are litigating since long, and there is no chance of reconciliation, on the request of the parties the court can covert divorce petition into consent petition under section 13-B of the Act and dispense with the statutory waiting period of six months and pass a decree of divorce by consent of the parties, if it is satisfied that there is no fraud or misrepresentation. The contention of the learned counsel, therefore, was that the case in hand is clearly covered by the decision of this court in the case of Ravinderpal Singh Vs. Smt.Ranjit Kaur (supra). Learned counsel for the respondent also placed reliance on the judgment of this court in the case of Amarjit Kaur Vs. Bhupinder Singh (2007-1) PLR 534; judgment of Hon'ble Delhi High court in the case of Rachna Jain Vs. Neeraj Jain 2005 (4) RCR (Civil) 226 and judgment of Hon'ble Supreme Court in the case of Ashok Hurra Vs. Rupa Bipin Zaveri AIR 1997 SC 1266 in support of the contention that statutory period of six months could be waived. Bhupinder Singh (2007-1) PLR 534; judgment of Hon'ble Delhi High court in the case of Rachna Jain Vs. Neeraj Jain 2005 (4) RCR (Civil) 226 and judgment of Hon'ble Supreme Court in the case of Ashok Hurra Vs. Rupa Bipin Zaveri AIR 1997 SC 1266 in support of the contention that statutory period of six months could be waived. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant. Keeping in view the fact that petition earlier filed was converted into one under section 13-B of the Act, and the learned court was pleased to dispense with the statutory period of six months, it cannot, therefore, be said that the provisions of statute were violated, in view of the law laid down by this court in the case of Ravinderpal Singh Vs. Smt.Ranjit Kaur (supra). The appeal being without any merit is, therefore, ordered to be dismissed. However, it may be noticed that in the present case, no permanent alimony, was granted while granting decree of divorce. One of the grounds taken by the appellant to challenge the decree was non-grant of permanent alimony. Keeping in view the facts and circumstances of the case and the status of the parties, the appellant is granted permanent alimony of Rs.2.5 lacs (Rupees two lacs and fifty thousand only) in lump sum.