Smt. Sunita @ Sheetal Satija vs Sh. Ram Kishan Satija
2010 Latest Caselaw 59 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CRP No.155/2009 & CM No.16827/2009

                  Date of Decision: January 08, 2010

      SMT. SUNITA @ SHEETAL SATIJA       .....Petitioner
                Through: Ms. Deepika, Advocate.

                           versus

      SH. RAM KISHAN SATIJA               ..... Respondent
                Through: None.

      %
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

    (1)  Whether reporters of local paper may be
         allowed to see the judgment?
    (2) To be referred to the reporter or not?
    (3) Whether the judgment should be reported
        in the Digest ?

                     JUDGMENT

ARUNA SURESH, J. (Oral)

CM No.16827/2009 (for exemption)

Exemption allowed, subject to all just exceptions.

Application stands disposed of.

CRP No.155/2009

Petitioner was initially married to one Virender

Kumar according to Hindu Rites and Ceremonies. The

said marriage is said to have been dissolved as per

customary laws observed in that particular sect of society

of Punjab, to which the petitioner belonge. Thereafter

petitioner married Ajay Gupta on 28th June, 1999,

according to Hindu Rites and Ceremonies. This marriage

also did not survive for more than eight years and

petitioner and Ajay Gupta dissolved the same by a decree

of divorce by mutual consent on 14th March, 2007. After

about four months of dissolution of the marriage,

petitioner married the respondent on 22nd July, 2007,

according to Hindu Rites and Ceremonies. This marriage

is also on the rocks and parties are living separately since

16th October, 2007. Petitioner filed a petition under

Section 125 of the Code of Criminal Procedure

(hereinafter referred to as 'Cr.P.C.') seeking maintenance

and a complaint under Domestic Violence Act. She also

filed a petition under Section 9 of the Hindu Marriage Act

(hereinafter referred to as the 'Act') for restitution of

conjugal rights, whereas respondent filed a petition for

divorce and later on converted the same into a petition

for nullity of marriage.

Petitioner filed a petition under Section 24 of the

Act seeking interim maintenance from the respondent.

The said petition was dismissed by the Trial court vide

impugned order dated 7th October, 2009. However, in

pursuance of the order of the Metropolitan Magistrate

passed in the petition under Section 125 Cr.P.C.,

petitioner is getting a sum of Rs.1,000/- for rental

accommodation.

The Trial Court dismissed the application of the

petitioner under Section 24 of the Act, keeping in mind

that respondent had disputed the legality and validity of

the marriage between him and the petitioner because of

petitioner having not divorced her first husband Virender

Kumar in accordance with law and whether any custom is

prevalent in the community, to which the petitioner

belongs, any virtual contacts between the petitioner and

Virender could be dissolved by the community people, is

a question which needed trial and could be decided only

after the evidence of the parties was adduced. The Trial

Court also took into consideration the fact that the

petitioner had filed an application under Section 24 of the

Act in the petition under Section 9 of the Act filed by her

against her previous husband Ajay Gupta. The said

petition was also dismissed by the Trial Court with the

observation that the petitioner's marriage with her first

husband Virender Kumar was still subsisting.

Learned counsel for the petitioner has submitted

that the petitioner had challenged the order of the Trial

Court, dismissing her application under Section 24 of the

Act, filed in a petition under Section 9 of the Act vide CM

No.13427/06. Said CM was disposed of with the

observation that, observations made by the Court in the

said order could not be read against the petitioner in the

main petition pending at Noida Courts, in which the

question as to whether there existed any such customary

law for dissolution of marriage and the fact thereof would

be considered. The Trial Court therefore, went wrong in

considering the said order passed on an application

under Section 24 of the Act filed in the petition under

section 9 of the Act while dismissing this application in

the instant case.

These submissions are of no help to the petitioner.

Obviously, the said CM was dismissed as petitioner had

made a statement that she did not press for interim

maintenance. Since she was aggrieved of certain

observations made in the said order dated 8th August,

2006 about dissolution of her marriage by customary

practice, this Court made it clear that the observations

made in the order dated 8th August, 2006, impugned

before the Court, would not prejudice the case of the

petitioner on merits. Petition under Section 9 of the Act

filed by the petitioner was dismissed by the Court holding

that petitioner's marriage with her first husband Virender

Kumar was still subsisting. Petitioner has chosen not to

place on record the certified copy of the said order of the

Trial Court. Therefore, whether marriage between

petitioner and Virender Kumar stood legally dissolved, as

per the customary law, is still an issue which needs trial

and adjudication in the petition filed by the respondent

seeking a decree for nullity of marriage between him and

the petitioner.

Learned counsel for the petitioner has further

submitted that it stands proved on record that marriage

between petitioner and Virender Kumar stood legally and

validly dissolved by customary practices when she and

her second husband Ajay Gupta sought dissolution of

marriage by a decree for divorce by mutual consent.

These submissions cannot be entertained for the

simple reason that while dissolving marriage on mutual

consent of the parties filed under Section 13B of the Act,

Court was not to see the merits and demerits of the case;

and only that marriage between the parties to the

petition had irretrievably broken down and the parties

could not live together. The Trial Court, while granting

divorce to the petitioner and Ajay Gupta did not consider

if marriage between the petitioner and Ajay Gupta was a

lawful marriage in the background of petitioner having

previously married Virender Kumar, whom she allegedly

divorced as per the custom.

Under these circumstances, when relationship of

husband and a wife is disputed and it is yet to be

ascertained, if petitioner is a lawful wedded wife of the

respondent, in the absence of any other evidence on

record, the Trial Court rightly rejected the petition for

interim maintenance. I find no reason to interfere with

the observations made by the Trial Court while dismissing

the application. It is of relevance that petitioner had

received Rs.4,00,000/- from Ajay Gupta at the time of

obtaining divorce from him. She is also getting

Rs.1,000/- as rent, as per the order of the Metropolitan

Magistrate passed in the Domestic Violence Act case.

Hence, the petition is hereby dismissed.

(ARUNA SURESH) JUDGE JNAUARY 08, 2010 sb