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2013 DIGILAW 736 (JK)

Romana (Mst. ) v. Manzoor Ahmad Bhat

2013-12-20

ALI MOHAMMAD MAGREY

body2013
1. This case warrants bringing back to memory the concern expressed by the Supreme Court in Gaurav Nagpal v. Sumedha-Nagbal, (2009.) 1 SCC 42, relating to alarming increase in matrimonial discords and the serious impact thereof on the children. The Supreme Court in that case succinctly drew a comprehensible picture of the ill effects of the menacing tendency in the society in the following words: "Matrimonial discords are on the rise at an alarming rate. The sanctity of marriages is under cloud, which in a great way affects the society at large. Individuals can in no way be segregated from the society to which they belong. The cultural heritage of a country is greatly influenced by a pattern of behaviour of individuals and more so in matters of matrimony. Home can be a wonderful place to live. But continuous fights between the partners of a marriage disturb the atmosphere at home and create havoc on the members of a family. One does not need a mansion to lead a happy marital home. The foundation of a happy home is love, sharing of joys and sorrows, and not in that sense bricks and concrete. There should be cementing of hearts and not cementing of floors and walls. Life is a series of awakening. The happiness which brings enduring worth to life is not the superficial happiness that is dependent on circumstances. Ultimately, in the fight between the partners, the victims more often than not are the children. It is unfortunate that in their fight more often on account of egoism the children suffer, more particularly when the child is a girl. It is not uncommon to see that at the time of negotiation of marriage, the boy's parents shy away because the girl is from a broken family and/or the parents are divorced. The child has practically no role in breaking of the marriage, but he or she suffers. The marital discord sometimes reaches a stage where the parties are unmindful of what psychological, mental and physical impact it has on children. It is worse when there is a single child, be it a boy or a girl. The case at hand is a classic example where the child has become the focus of controversy. Bitter legal fights have been fought and the corridors of several courts including the Supreme Court have been travelled by the parties. It is worse when there is a single child, be it a boy or a girl. The case at hand is a classic example where the child has become the focus of controversy. Bitter legal fights have been fought and the corridors of several courts including the Supreme Court have been travelled by the parties. Efforts have been made unsuccessfully to bring about conciliation between the parties. The best way to make children good said a learned author is to make them happy. 2. The girl child and the mother, in the instant case, are sought to be indelibly stigmatized, dubbing the mother as demi-monde and the child ill-gotten, and, on that ill-conceived excuse, the duo is sought to be driven to a state of anathema. A brief reference to the assertions and contentions unfurling from the records is made hereunder: 3. The respondent herein, i.e., the husband of petitioner no. 1, filed a suit for declaration and permanent injunction before the Court of 1st Additional Munsiff, Srinagar, for the following reliefs: "A. Declaring the so-called marriage between the plaintiff (respondent herein) and defendant no. 1 (petitioner no. 1 herein) dated 1.05.2010 as null and void; B. Declaring the child (petitioner no. 2 herein) delivered by the defendant no. 1 in the hospital of defendant no. 4 on 10.11.2010 as illegitimate; C. Declaring the plaintiff under no obligation to maintain the defendant no. 1 and the illegitimate child delivered by her; D. A decree of perpetual, injunction restraining the defendants 1 to 3 from claiming the plaintiff as husband of defendant no. 1 and father of illegitimate child so born from the defendant no. 1". 4. The case set-up by respondent herein in the aforesaid suit is that in the year 2009 a marriage broker floated a proposal of marriage between him and petitioner no. 1. His family visited the residence of petitioner no. 1 and eventually Nikah between him and petitioner no. 1 was solemnized on 01.05.2010. The formal marriage, i.e., Rukhsati of petitioner no. 1 from her parental home is stated to have taken place on 01.06.2010. According to the plaintiff, respondent herein, later on it surfaced that petitioner no. 1 herein was pregnant before the day the offer and acceptance took place on 01.05.2010 by fornication with some other person than the plaintiff. Eventually, petitioner no. 1 gave birth to a female child,: petitioner no. According to the plaintiff, respondent herein, later on it surfaced that petitioner no. 1 herein was pregnant before the day the offer and acceptance took place on 01.05.2010 by fornication with some other person than the plaintiff. Eventually, petitioner no. 1 gave birth to a female child,: petitioner no. 2 herein, on 10.11.2010, at Ramzana Hospital and the child had completed nine months of gestation period. 5. Petitioner no. 1 in her written statement to the aforesaid suit averred that the proposal of marriage between, her and respondent was floated in October, 2009 and it was on 02.11.2009 that ring ceremony for performed. After the engagement, respondent used to give phone calls to her and the two used to meet out of their respective homes either with their family members or separately. As the days passed, intimacy between her and the respondent grew more and more and the frequency of their meetings also increased. On 20.02.2010, the respondent took her in his tinted vehicle to an isolated place near New Era Public School, Raj Bagh, Srinagar, influenced her for love making, and, under the compelling circumstances, which were beyond her control, she surrendered to the physical intimacy of the respondent with a bonafide belief of being his wife. Thereafter, on 16.03.2009, she felt drowsiness at her residence and immediately informed the respondent about the symptoms of pregnancy, on which she alongwith the respondent had a consultation with a Doctor. The respondent pacified her with a promise that he will take immediate and effective steps for fixing early date for marriage so that the birth of the child would not be doubted by any person. The Nikah and marriage followed as mentioned above. 6. Petitioner no. 1 (Defendant) also made an application before the trial court, seeking permission for conducting DNA test of the respondent and the female child, named, Zobia Manzoor Bhat, for ascertaining the paternity of the said child. The respondent (plaintiff) resisted and contested the said application. The trial court, vide its order dated 22.06.2011 allowed the application and ordered DNA matching test of the plaintiff (respondent herein) and the child, Zobia Manzoor. Thereafter, it appears that petitioner no. l made another application before the trial court for implementation of order dated 22.06.2011 which, too, was resisted and contested by the respondent-plaintiff. The trial court, vide its order dated 22.06.2011 allowed the application and ordered DNA matching test of the plaintiff (respondent herein) and the child, Zobia Manzoor. Thereafter, it appears that petitioner no. l made another application before the trial court for implementation of order dated 22.06.2011 which, too, was resisted and contested by the respondent-plaintiff. The trial court, going by the law settled by the Supreme Court on the point, held that a person cannot be compelled to undergo a medical test, including DNA test, though his refusal to undergo such test will draw an adverse inference against him. The trial court, accordingly, disposed of the application for implementation of its earlier order dated 22.06.2011. Certified copy of the said order placed on record of this petition does not bear any date. However, it is stated that it was passed in June 2012. 7. Aggrieved by the aforesaid order, refusing to implement its earlier order dated 22.06.2011, the defendant(s) in the suit have filed this writ petition seeking quashing of the said order of refusal with prayer to direct the trial court to ensure that the respondent is made to surrender himself for undergoing DNA test. 8. The respondent filed his reply to the writ petition on 22.11.2012. Apart from reiterating the narrative mentioned by him in his suit, the respondent has stated that the order has been passed by the trial court in the larger interest of the child; otherwise he is ready to undergo the DNA test and in that eventuality, if the test results go against the petitioner, he will not bear any responsibility for the child for all times to come. 9. However, on 10.07.2013, during the course of proceedings in this writ petition, the respondent made a statement before a Coordinate Bench of this Court to settle the controversy and, consequently, the Court passed the following order: "Learned counsel for the respondent submitted that respondent admits and accepts the minor child, Zobia as his legitimate daughter. Learned counsel further submitted that the respondent volunteers to pay one time maintenance of Rs.3.00 lacs for maintaining the minor child. . Learned counsel for the petitioners submitted that the minor girl is three years of age and Rs. 3.00 lacs are not sufficient amount for her maintenance till she attains the age majority. Learned counsel for the respondent to seek instructions for enhancement of amount of maintenance. . Learned counsel for the petitioners submitted that the minor girl is three years of age and Rs. 3.00 lacs are not sufficient amount for her maintenance till she attains the age majority. Learned counsel for the respondent to seek instructions for enhancement of amount of maintenance. List in the next regular cause list." (Highlighting supplied) 10. Having made an unequivocal statement before the Court to the aforesaid effect and offered settlement, the respondent on 26.08.2013 made an application, being CMP no.1883/2013, seeking modification of the aforesaid order dated 10.07.2013 passed by the Coordinate Bench of this Court with prayer to "record the same the way the applicant has suggested for the settlement of the case once for all". In the application, the respondent, inter alia, made the following statements: "4. That the non-applicant is ready to undergo the DNA test and has no object to present himself for the DNA test but in case the test is against the applicant, the non-applicant shall be absolved of all liabilities including the parentage of the child and the maintenance of the applicants. 6. That the case was listed before the Hon'ble court on 10.7.2013 when the counsel for the respondent submitted that in order to save the future of the child, the applicant proposed for the settlement of the case once for all and made suggestion that applicant is ready to give the parentage of the child and one time maintenance to the child to the tune of rupees three lacs or in-alternative take the child with him for all the times to come and end the relation with petitioner No. 1 7. That the Hon'ble court vide order dated 10.7.2013. has recorded that the respondent has admitted the paternity of the child and only maintenance is dispute, it is humbly submitted that applicant has flouted the suggestion though his counsel in order to safeguard the future of the female child and has not admitted and accepted the parentage of the child as recorded in the order dated 10.7.2013 by the Hon'ble court, thus this application to seek the modification of the order in order to set right the records." The aforesaid CMP no. 1883/2013 was listed before the Court on 30.8.2013. However, the minutes of the file reveal that the learned counsel for the respondent-applicant sought adjournment. It was again listed before the Court on 6.9.2013. 1883/2013 was listed before the Court on 30.8.2013. However, the minutes of the file reveal that the learned counsel for the respondent-applicant sought adjournment. It was again listed before the Court on 6.9.2013. On that day a proxy counsel appeared on behalf of the respondent before the Court. The Court ordered listing of the main petition alongwith connected CMPs and, meanwhile objections to the CMP in question were sought from the petitioners. 11. On 20.11.2013, when the main petition alongwith connected CMPs, including CMP no. 1883/2013, came up for consideration, the learned counsel for the respondent proposed the terms of settlement in the open Court consequent upon which this Court passed the following order: "Learned counsel for parties, in the process of amicable settlement of the matter, have submitted details of the claim. Mr. S. H. Thakur, learned counsel for respondent, has submitted .the list of articles seized in the process implementation of orders of Judicial Magistrate (Sub-Registrar), Srinagar, which is taken on record. Mr. Thakur submits that respondent is ready to settle the matter in the following terms: i) Respondent will make payment of Rs. 5.00 lacs to petitioners; ii) Respondent will return ornaments and the listed items of supurdnama to petitioner no. 1; iii) Maintenance to be enhanced with the growth of age keeping in view expenditure/need. Mr. G. A. Lone, learned appearing counsel for petitioners, submits that he is in agreement with settlement of the matter but respondent shall ensure implementation of settlement before Registrar Judicial of this Court by submitting /depositing the ornaments/articles/amount of Rs. 5.00 lacs. Mr. Thakur has undertaken to implement the compromise and submit the aforesaid amount /articles / ornaments before the Registrar Judicial by tomorrow. Registrar Judicial shall in presence of both the parties take the custody of the articles / ornaments / money in the shape of FDR Rs.3.00 lacs in the name of child (petitioner No. 2) and Rs.2.00 lacs in the name of her mother (petitioner no.2). The settlement arrived at before the Registrar Judicial shall be submitted day after tomorrow. The settlement arrived at between the parties shall settle all the proceedings / disputes pending before any court of law. In the meantime, proceedings, if any, pending shall stay. List this matter day after tomorrow." 12. On 22.11.2013 and 26.11.2013, when the matter was again listed, no proceedings could be taken. The settlement arrived at between the parties shall settle all the proceedings / disputes pending before any court of law. In the meantime, proceedings, if any, pending shall stay. List this matter day after tomorrow." 12. On 22.11.2013 and 26.11.2013, when the matter was again listed, no proceedings could be taken. On 28.11.2013, when the matter came up for further orders, learned counsel for the respondent submitted that he had filed an application seeking modification / review of the order dated 20.12.2013. The matter again came up before the Court on 02.12.2013 alongwith the application, CMP no. 2848/2013, so filed by the respondent for modification of order dated 20.11.2013. In the application, the respondent made the fallowing prayer: "In the premises, it is therefore humbly prayed that Hon'ble court be pleased to allow this application of the applicant and Hon'ble court be pleased to modify the order dated 20.11.2013 passed by the Hon'ble court and record the same in the way the applicant has suggested for the settlement of the case once for all so that record of the court is set right. Same will serve the ends of justice." However, the learned counsel for the respondent-applicant withdrew the application. His statement was taken on record. The application was permitted to be withdrawn and was dismissed as such. The main writ petition alongwith other connected CMPs was ordered to be listed in the next regular cause list. 13. Meanwhile, the respondent filed yet another application, being CMP no. 2934/2013, containing almost the same statements and assertions as were made by him in CMP no. 2848/2013. It would be appropriate to reproduce hereunder the relevant paragraphs of the application so filed by the respondent: "2. That the case pertains to the matrimonial dispute and the legitimacy of the child namely Zobia who is petitioner No. 2 in the present case. 3. That the case was listed before the Hon'ble Court on 20.11.2013 when the counsel for the respondents submitted that in order to save the future of the child, the applicant proposed for the settlement of the case once for all and made suggestion that applicant is ready to give the parentage of the child and one time maintenance to the child. 4. That the settlement was reached in between the parties in the before Hon'ble court and the parties have agreed to it in letter and spirit. 5. 4. That the settlement was reached in between the parties in the before Hon'ble court and the parties have agreed to it in letter and spirit. 5. That all the belongings gold collected by both the sides would be given to the Applicant No. 1 (Roomana, including other items clothes. 6. That all the pending cases between the parties shall be settled once for all and no party have any right to re-agitate the matter before any court of law, both parties would be entitled to live the independent life without any interference from each other. 7. That the child will remain in the custody of mother for all times to come and will not inherit the father. 8. That all the case instituted between the parties shall stand withdrawal once for all and have no claim against each other and the relation between the parties will end up then and there for all times to come. 9. That this case was listed before the Hon'ble court on 20.11.2013 when Hon'ble court passed an order indicating therein that the maintenance would be enhanced when the fact of the matter is that, it would be one time maintenance of 5 lakhs for the child, out of which 3 lakhs would be deposited in the FDR which remain in the name of Minor child (Petitioner No. 2 till the child attains the age of majority and 2 lakhs will be spend for the petitioner No. l which was never the part of the settlement at any level." (Underlining supplied) The respondent has repeated the same prayer in the application as had been made by him in his earlier application, CMP no. 2848/2013, quoted hereinabove, which was withdrawn by the respondent and dismissed as such. 14. I have heard learned counsel for the parties in the main petition as well as the connected CMPs, including the instant CMP, and considered the matter. CMP No.1883/2013: 15. It may be observed here that the respondent had moved this application, CMP no. 1883/2013, seeking modification of the aforesaid order dated 10.07.2013 and when the same came up for consideration, the learned counsel for the respondent offered the terms of settlement which were recorded by this Court in its order dated 20.11.2013. Therefore, it has to be deemed that prayer made in CMP no. 1883/2013, seeking modification of the aforesaid order dated 10.07.2013 and when the same came up for consideration, the learned counsel for the respondent offered the terms of settlement which were recorded by this Court in its order dated 20.11.2013. Therefore, it has to be deemed that prayer made in CMP no. 1883/2013 stood merged in the terms of settlement recorded by the Court in its order dated 20.11.2013, and settled accordingly. CMP No. 2934/2013: 16. As noted above, CMP no. 2848/2013 moved by the respondent, seeking modification of order dated 20.11.2013 was withdrawn by the respondent-applicant and the same was dismissed as such in terms and order dated 02.12.2013. CMP no. 2934/2013 has again been made by the respondent for modification of order dated 20.11.2013 on the same statements and assertions as were contained in CMP no. 2848/2013. The application on the face of it is not sustainable in law. It hardly needs a mention that when a compromise is reached at between the rival parties and the terms and conditions of compromise and settlement are recorded by the Court, the same are not open to any revision either on review or on appeal. In the instant case, the terms of settlement agreed upon by the learned counsel for the parties were recorded by this Court in its order dated 20.11.2013. When it came to implementation of the terms of the settlement and compromise, the respondent made CMP no. 2848/2013 seeking modification of the terms of the compromise. When the said CMP came up for consideration, the learned counsel for the respondent sought permission to withdraw the same which permission was granted and the CMP was dismissed as such. Unmindful of the implication of withdrawal of the earlier application and the compromise recorded by the Court on the terms of settlement offered by him and agreed by the opposite side, the respondent has made the instant application with almost identical contents and relief, quoted hereinabove. 17. As is axiomatic from the contents of the application, the respondent, while stating that the settlement was reached in between the parties before the Hon'ble Court and the parties have agreed to it in letter and spirit, wants this Court, inter alia, to introduce a condition in the compromise and settlement as would tantamount to divesting the minor girl child, Baby zobia, petitioner no. 2 herein, from inheriting the properties of her father i.e., the respondent. Such a controversy is neither involved in the present proceedings, nor is in issue in the suit filed by the respondent which is pending adjudication before the court of 1st Additional Munsiff, Srinagar. This becomes clear from the prayer clause of the suit quoted hereinabove. The modifications sought to be incorporated in the settlement are also vehemently objected to by the other side. I am convinced that such a condition cannot be incorporated by this Court in the terms of settlement, as the same would tantamount to foreclosure of the legal rights those may otherwise be available to the child in accordance with the personal law governing the parties. The respondent further wants this Court that the condition in relation to seeking enhancement of maintenance in future may also not be incorporated in the order. The submission is based on the wishful thinking of the respondent and sounds preposterous in view of the fact that such legal right of the petitioners, especially petitioner no. 2 cannot be foreclosed by this Court, more so when the terms of settlement stand agreed to between the parties and recorded by the Court. The applicant-respondent cannot be allowed to vacillate every now and then, resort to mockery in judicial proceedings and ask the Court to modify the settlement offered by him at his whims and impulses. The application is wholly misconceived and untenable. It is accordingly, dismissed. OWP No.1437/2012 & CMP No. 2334/2012 18. So far as the main writ petition is concerned, the petitioner no. 1 wants that the respondent should submit himself to the DNA matching test so as to establish the biological paternity of petitioner no. 2. In this connection, it would suffice to say that in view of the clear statement of the respondent made before the Court as recorded by the Coordinate Bench of this Court in the order dated 10.07.2013, that he admits and accepts the minor child, Zobia, as his legitimate daughter, Which statement has been repeated by him in his aforesaid applications, CMP nos. 1883/2013, 2848/2013 and 2934/2013 in one way or the other, the claim of petitioner no. 1 stands established. In that view of the matter, nothing more is required to be done in the writ petition. 19. 1883/2013, 2848/2013 and 2934/2013 in one way or the other, the claim of petitioner no. 1 stands established. In that view of the matter, nothing more is required to be done in the writ petition. 19. As a sequel and necessary Corollary to the above, all the proceedings initiated at the instance of the parties either before this Court or before the court(s) below stand settled. 20. The writ petition alongwith the connected CMP is, accordingly, disposed of, however, without any order as to costs. 21. The parties are directed to take the follow up action in term and in implementation of the compromise arrived at between them and recorded by this Court in its Order dated 20.11.2013 in accordance with the directions contained therein before the Registrar Judicial, High Court of J&K, Srinagar, on 23.12.2013. In the event of default by a party, the other party shall be free to file appropriate proceedings for non-compliance. The proceedings pending before the court(s) below, whether of criminal or civil nature, shall abide by the decision herein recorded.