Delhi High Court
Nikhil Gupta vs Smt.Shruti Gupta on 22 December, 2008
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1400/2008
% Date of Decision: 22.12.2008
Nikhil Gupta .... Petitioner
Through Mr.Jaideep Gupta, Sr. Advocate with
Mr.Sanjay Gupta and Mr.Sumit Bansal,
Advocates.
Versus
Smt.Shruti Gupta .... Respondent
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
1. The petitioner impugns the order dated 1st December, 2008
dismissing the petition under Section 13(B)(1) of Hindu Marriage Act for
dissolution of marriage between the petitioner and respondent on the
ground of mutual consent as the respondent was allowed to withdraw
her consent to the second motion.
2. The petitioner and the respondent were married on 11th July,
2007. Before the expiry of one year a petition for decree of divorce by
mutual consent was filed on 13th May, 2008 along with an application
for waiver of statutory period of one year.
3. Though the first motion petition with an application for waiver of
one year period which was filed on 13th May, 2008 was not heard and
decided, it appears that even the second motion petition was prepared
which is annexure P5 to the petition which reveals that the second
motion petition was also signed on 13th May, 2008 and even the
affidavit of the petitioner was attested on the same date. From the
photocopy of the affidavit of the respondent it is not apparent as to on
which date the said affidavit was got attested by the respondent,
however, it is clear that the affidavit was signed on 13th May, 2008.
4. The first motion petition came up for hearing on 16th May, 2008
on which date it was allowed holding that the marriage of the petitioner
and the respondent cannot be dissolved immediately in view of the
provisions of Section 13(B)(2) of the Act. The parties were given liberty
to move their second motion petition within the statutory period in
accordance with law.
5. Despite this order dated 16th May, 2008 the second motion
petition which was registered as HMA no.256/2008 was taken up on
the same date and the exemption from appearance of petitioner No.2
was requested and the matter was adjourned to 22nd May, 2008. Even
on 22nd May, 2008 respondent did not appear and the matter was
adjourned to 24th May, 2008. On 24th May, 2008 the counsel for the
respondent submitted that she is not interested in divorce and shall be
filing an application for withdrawal of her consent and the matter was
adjourned to 7th July, 2008 and thereafter the matter was adjourned to
26th July, 2008. An application dated 18th July, 2008 was filed on
behalf of respondent seeking withdrawal of her consent.
6. The learned Trial Court after considering all the facts and
circumstances and the law allowed the respondent to withdraw her
consent to second motion petition by order dated 1st December, 2008
which is impugned on the ground that there was no force, threat or
undue influence on the respondent.
7. The whole procedure adopted by the petitioner in filing the second
motion petition is irregular. Before the expiry of one year statutory
period the petition under Section 13B first motion was prepared and got
signed on 13th May, 2008 and even before any order being passed on
the first motion, the second motion petition had also been got signed
from the respondent on 13th May, 2008. The signing of first motion and
second motion on the same date even before the first motion was
allowed is contrary to Section 13B of Hindu Marriage Act.
8. The learned Additional District Judge has noted these facts and
has held that there was no impediment on the part of the respondent to
withdraw her consent to the second motion petition. The learned Judge
has also noted that even in the first motion petition nothing was stated
as to how much alimony has been settled or paid and in what mode
that amount has been paid to the respondent. This is also apparent
that after the first motion was granted on 16th May, 2008, the
respondent did not appear before the Court for the second motion
though the same was taken on the same date. While allowing the first
motion the Court had categorically recorded that marriage of the
petitioner and the respondent cannot be dissolved immediately. Rather
petitioner and the respondent were advised to live together and patch
up their differences in due course of time.
9. The learned Additional District Judge while disposing of the first
motion petition had also observed that the second motion petition be
filed within the statutory period in accordance with law and in the
circumstances the second motion which was signed on 13th May, 2008
could not be in compliance with the order dated 16th May, 2008 passed
on the first motion petition.
10. In the circumstances, there is no manifest error or such
jurisdictional error which will entail interference by this Court in
exercise of its jurisdiction under Article 227 of the Constitution of India
against the order dated 1st December, 2008 dismissing the petition
under Section 13B of Hindu Marriage Act for dissolution of marriage by
mutual consent. The petition is without any merit and is dismissed in
limini.
11. The petitioner has also sought quashing of proceedings initiated
by the respondent before the Crime against Women Cell in file
No.3397/2008. In the petition impugning the order dated 1st December,
2008 dismissing the petition under Section 13B of Hindu Marriage Act
for dissolution of marriage by mutual consent, the quashing of
proceedings initiated before the Crime against Women Cell cannot be
taken nor any such grounds have been made out in the petition.
The petition is, therefore, dismissed.
December 22, 2008 ANIL KUMAR
'k' (Vacation Judge)
