Smt Prabha Rajput & Anr vs Delhi Administration Nct Of Delhi
2012 Latest Caselaw 4381 Del

$~2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      MAT.APP. 2/2012

%                               Date of decision: July 24, 2012


SMT PRABHA RAJPUT & ANR                                     ..... Appellants
                 Through :               Mr. V.P. Katiyar, Adv.

                   versus

DELHI ADMINISTRATION NCT OF DELHI           ..... Respondent
                 Through : Mr. Abhay Raj Varma for Mr. Najmi
                           Waziri, Adv.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J (Oral)
*

CM No.290/2012 (exemption)

Exemption as prayed is allowed, subject to just exceptions. Application stands disposed of.

MAT.APP. No. 2/2012

1. This is an appeal under section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as `the Act') filed by the appellants challenging the order dated 31st October, 2011 passed by the learned Addl. District Judge whereby the joint petition of the parties under section 13-B(1) of the Act has been rejected.

Mat.App 2/2012 Pa ge 1 of 4

2. A joint petition under section 13-B(1) of the Act was filed by the appellants stating therein that their marriage was solemnized on 8 th November, 1981 in Delhi in accordance with Hindu customary rites and ceremonies. Out of their wedlock, two sons were born, now aged about 29 years and 27 years and are living with their father i.e., appellant no.2. It is stated that due to temperamental differences, they have been living separately since March, 1998 and have not resumed cohabitation and there is no possibility of living together as husband and wife. They have prayed for dissolution of marriage by decree of divorce by mutual consent. It is stated in the petition that they have settled their disputes regarding istridhan, maintenance and permanent alimony and have entered into deed of compromise dated 12.9.2011 whereby appellant no.2/husband has agreed to pay Rs.8 lacs to appellant no.1/wife. Out of which Rs.2 lacs would be paid by appellant no.2/husband at the time of making statement in the first motion petition. Remaining amount of Rs.six lacs would be paid at the time of making statements in the second motion petition u/s 13B(2) of the Act. A copy of settlement dated 12.9.2011 was also attached with the petition u/s 13-B(1) of the Act. Their joint statement on oath was recorded by the learned ADJ on 22.10.2011.

3. On 31st October, 2011, the learned ADJ dismissed the said petition by observing that there appears to be collusion between the parties. The learned ADJ has observed that the court had put a query to appellant no.1/wife wherein she had stated that she was having certain financial problems and husband had help her in solving the same. Learned ADJ has observed that appellant no.1/wife had stated that there was some chit wherein she had

Mat.App 2/2012 Pa ge 2 of 4 faced certain difficulties and her husband had helped in solving it. After talking to her, learned ADJ has observed that appellant no.1/wife is friendly with appellant no.2/husband and the petition is filed to ward off certain liabilities related to chit fund of appellant no.1/wife, as such there is collusion between the parties and the joint petition u/s 13-B(1) of the Act is rejected.

4. Learned counsel for the appellants has contended that there is no collusion between the parties as is observed in the impugned order. The petition under section 13-B(1) of the Act was not presented in collusion. Their joint statements on oath was also recorded. There is no material on record by which it can be said that there is collusion between the parties. It is further stated that parties are living separately for the past 15 years. There is no cohabitation between them since then. They are not going to defraud any one, as is observed in the impugned order, as such impugned order is illegal.

5. Learned counsel for the appellants has also placed on record their respective affidavits wherein it is stated that appellant no.1/wife does not owe any money of any debtor nor has any liability of chit etc nor the divorce petition was filed in collusion with appellant no.2/husband to obtain a collusive decree.

6. It may be noticed that necessary details have not been given in the impugned order by which it can be inferred that there is collusion between the parties. It has also come in the evidence that they are living separately for the past 15 years. Merely because appellant no.1/wife is facing some financial problems and appellant no.2/husband has helped her in the past

Mat.App 2/2012 Pa ge 3 of 4 does not mean that there is collusion between the parties in obtaining the divorce. The joint petition of the parties as well as their joint statement on oath satisfies the requirement of Section 13-B(1) of the Act. They have categorically stated that they have not cohabited for the past 15 years. There is no collusion between them.

In these circumstances, the impugned order dated 31.10.2011 is set aside. Their petition u/s 13-B(1) of the Act is allowed.

Appeal stands disposed of accordingly.

Trial court record be returned forthwith.

                                       VEENA BIRBAL, J
JULY 24, 2012
ssb




Mat.App 2/2012                                             Pa ge 4 of 4