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2017 DIGILAW 380 (UTT)

RITA SHARMA v. RAJEEV KUMAR SHARMA

2017-07-13

RAJIV SHARMA, SHARAD KUMAR SHARMA

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JUDGMENT Per Hon’ble Sharad Kumar Sharma, J. It is a wife’s appeal seeking enforcement of the judgment and decree dated 13th October, 2014, passed by the Principal Judge, Family Court, Dehradun, in Original Suit No. 276 of 2014, under Section 13-B of the Hindu Marriage Act. 2. The facts as narrated are that the marriage between the appellant and respondent was solemnized on 15th September, 2007, and out of the wedlock, a son Parth was born. But, on account of certain misunderstanding, it became impossible for the parties to the suit to live together. It was an admitted case before the Court below that minor son Parth was residing with the appellant would be at liberty to live with either of the spouses on attaining the age of majority, for which, either of spouses would have no objection. It was settled that the respondent husband would pay a sum of Rs.12,000/- p.m. to the wife, i.e. the appellant for maintenance of his son. While the suit was pending, the parties mutually agreed and filed an application Paper No. 8A on 15th September, 2007, seeking to mutually dissolved their marriage. The operative portion of the judgment dated 13th October, 2014, under scrutiny in the appeal, reads as under :- “The suit filed by the applicants under Section 13-B of the Hindu Marriage Act is allowed for dissolution of marriage on the basis of mutual consent of the parties and the marriage held between the parties on 15.09.2007 is hereby dissolved by a decree of divorce. The applicants will bear the expenses of the case themselves.” 3. The appellant has filed the instant appeal invoking Sub-section (4) of Section 19 of the Family Court Act read with Section 28 of the Hindu Marriage Act. The respondent raised an objection with regard to the maintainability of the petition, for the reason, that the judgment impugned dated 13th October, 2014, since being a judgment by invoking Section 13-B of the Act, the appeal would not lie. 4. In response to the said issue, the learned counsel for the appellant, Mrs. The respondent raised an objection with regard to the maintainability of the petition, for the reason, that the judgment impugned dated 13th October, 2014, since being a judgment by invoking Section 13-B of the Act, the appeal would not lie. 4. In response to the said issue, the learned counsel for the appellant, Mrs. Prabha Naithani, submitted that the Appellate Court can exercise its power under Sub-section (4) of Section 19 of the Act which empowers the High Court on its own motion or otherwise call for and examine the record of any proceeding, in which, the Family Court is situated within its jurisdiction, for the purposes of satisfying itself as to the correctness and legality of the propriety of the order. 5. The learned counsel for the appellant submitted that the mutual divorce which was submitted before the Court below on 15th September, 2007, as referred in the operative portion of the judgment dated 13th October, 2014, does not refer the settlement agreed between the parties so far it relates, towards the payment to be made for maintenance of the son of Rs.12,000/- p.m. 6. Taking advantage of non-reference to the aforesaid clause in the judgment impugned, the husband has stopped the payment and honouring the decree passed under Section 13-B of the Act. 7. She further submitted that the respondent taking advantage of the decree had already got the marriage dissolved, and has solemnized the second marriage and, after solemnizing the second marriage, he has stopped making payment of maintenance, thus, rendering the appellant in a precarious financial conditions. 8. In response to the argument extended by Mrs. Prabha Naithani, the learned counsel for the respondent, Mr. Pawan Mishra, submitted that the respondent is not in a position to pay a sum of Rs.12,000/- p.m. towards maintenance to his son. This argument of Mr. Pawan Mishra, the learned counsel for the respondent, is not acceptable. Once he has obtained the decree under Section 13-B of the Act for mutual divorce, he cannot spilt over the decree by enjoying the same by dissolution of marriage and entering into the solemnizing the second marriage, whereas, simultaneously denying the second part of the decree, i.e. the payment of the maintenance to his own son. 9. At this stage, Mr. 9. At this stage, Mr. Pawan Mishra, the learned counsel for the respondent, cannot be permitted to spilt over the decree as he will have to accept the consequence of the decree as a whole once, he admits the fact that there was settlement arrived at on 15th September, 2007, which was submitted before the Court below and which constituted as to be the basis of the decree. 10. The argument of Pawan Mishra, the learned counsel for the respondent of his ability is further not acceptable by this Court as he has not questioned or raised any plea about the incapacity to pay or he has neither questioned the validity of the judgment dated 13th October, 2014. 11. Admittedly, the settlement of 15th September, 2007, was voluntarily accepted settlement, which was not questioned, at any stage, rather it was created upon by the respondent, by the client of Mr. Pawan Mishra, the learned counsel for the respondent and, if the same has not been questioned, he is bound to honour the compromise which he has signed and the decree passed by the Court below so far it relates to the payment of the amount of Rs. 12,000/- p.m. as a maintenance towards the son. 12. Another remarkable feature is that when the suit was filed under Section 13-B of the Act, it was initiated by both the parties and, in its para 6, he agreed to remit the amount. Para 6 is quoted hereunder:- ^^;g fd izkFkhZ la[;k&1] izkFkhZ la[;k&2 dks crkSj Hkj.k iks"k.k izkFkhZ la[;k&2 o vius iq= gsrq 12000@& #i;s izfrekg dh /kujkf'k nsxk rFkk izkFkhZ la[;k&2 bl /kujkf'k ds vykok vius fy, Hkfo"; esa fdlh izdkj dk dksbZ Hkh Hkj.k iks"k.k] lEifÙr vkfn ugh ekaxsxh ijUrq i{kdkjksa ls mRié iq= ekŒ ikFkZ ds leLr vf/kdkj tSls iSr`d lEifÙk esa vf/kdkj] firk ls Hkj.k iks"k.k ikus dks vfèkdkj vkfn lqjf{kr gSA** 13. In such a circumstance, this Court is left with no option except to exercise its power vested under Sub-section (4) of Section 19 of the Act read with Article 227 of the Constitution of India, thereby, instead of remitting the matter on the basis of ticklish argument of maintainability, this Court feels that for rendering substantial justice, the respondent is bound to honour the decree, in totality, which he himself has solicited and he cannot partially reap the fruits of the decree and partially deny the liability arising out of it. 14. At this stage, it would be too cumbersome for the appellant to pursue the recourses before the Court below for enforcing the maintenance settled by the parties. Since, there is no dispute with regard to the propriety of the settlement before 15th September, 2007, this Court directs the respondent to start paying maintenance forthwith @ Rs. 12,000/- p.m as decreed by the Court below by the judgment dated 13th October, 2014, and to pay the balance amount w.e.f the date of application, i.e. 15th September, 2007, to the appellant in four monthly installments. 15. In an event of failure to comply with the direction given above, it would be open for the appellant to approach the competent Court, including this Court, in an appropriate proceedings for any action against the respondent. 16. In view of the above, the First Appeal is disposed of.