Ravinder Kaur vs Sunil Kumar Sharma
2012 Latest Caselaw 3215 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                CM(M) 575/2012

%                                          Date of Decision: 14.5.2012

RAVINDER KAUR                                          ..... Petitioner
                              Through :     Mr. R.N.Dubey, Advocate

                     versus

SUNIL KUMAR SHARMA                                       ..... Respondent
                Through :                   Nemo

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J. (Oral)

*

1. By way of present petition, petitioner-wife has challenged the order

dated 29th November, 2011, by which application of the respondent-

husband for restoration of divorce petition i.e., HMA 186/2009 which was

withdrawn by him on 22nd February, 2011, has been dismissed.

2. Respondent-husband had filed HMA 186/2009 against

petitioner/wife seeking dissolution of marriage on the ground of cruelty and

adultery. The alleged adulterator was also made a party to the said petition.

When the matter was at the stage of evidence of petitioner-wife,

respondent-husband had moved an application u/s 151 C.P.C. making

prayer for withdrawal of the said petition unconditionally. On 22 nd

February, 2011, the Ld. Family Court recorded the statement of

respondent-husband which is as under:-

"Í am the petitioner in the present petition filed by me under section 13(1)(ia) of the HMA against the respondent. During the proceedings of the present case, I have settled all my disputes with the respondent in view of the same I do not want to pursue further with the instant petition and, therefore, pray that permission may kindly be granted to withdraw the present petition unconditionally, I am making this statement vol., without any pressure, force or coercion.

3. Thereafter statement of the petitioner-wife was also recorded and the

learned trial court granted permission to the respondent-husband for

withdrawal of the aforesaid divorce petition unconditionally. Accordingly

the said petition stood dismissed as withdrawn.

4. After few months, respondent-husband had moved an application for

restoration of divorce petition alleging therein that at the time of

withdrawal of the divorce petition, the petitioner-wife had agreed to join

hands with the respondent-husband for filing divorce petition by mutual

consent and under the same bonafide belief, the case was withdrawn by

him and after the withdrawal of the divorce petition, petitioner-wife did not

comply with the alleged commitment made by her and is leveling false

allegations against respondent-husband. Petitioner-wife had opposed the

said application denying having given any consent for filing divorce

petition by mutual consent as is alleged. Petitioner-wife had also stated

that respondent-husband had unconditionally withdrawn earlier divorce

petition and no undertaking was given her as is alleged by respondent-

husband.

5. After hearing counsel for the parties and considering the statements

made by the parties while withdrawing the earlier divorce petition, the

learned court has observed as under:-

"while moving the application for withdrawal of the petition, there is no mention by the applicant as to what were the terms of the settlement and why he is going to withdraw the petition unconditionally."

6. Accordingly, the learned court has dismissed the said application for

revival of earlier divorce petition.

7. The impugned order dated 29.11.2011 is in favour of petitioner-wife.

Her only grievance is that in para 11 of the impugned order, it appears that

the learned trial court has given some directions to the petitioner-wife

about filing divorce petition by mutual consent. Relevant para of the

impugned order referred to above is as under:-

"In the obtaining facts and circumstances, I find some weight in the arguments of counsel for respondent no.1 as already discussed above, there being no formal commitment shown on the part of the respondent no.1 in judicial record, the petition having being withdrawn unconditionally on account of some settlement and settlement terms having not been scribbled down at this stage, it would not be appropriate to allow the restoration of the petition. However, petitioner is at liberty to file petition afresh seeking dissolution of marriage if respondent no.1 is not coming forward for filing mutual divorce for which petitioner may furnish cause of action as per law. With these observations, application is dismissed. File be consigned to Record Room."

8. Reading the para, it is clear that the trial court has categorically

observed that there is no formal commitment on the part of the petitioner-

wife for joining the respondent-husband for filing for filing divorce

petition by mutual consent. It has also been noted that earlier divorce

petition has been withdrawn unconditionally and settlement terms have

neither been mentioned in the application for withdrawal of divorce

petition or in the statement made by the parties.

9. There is nothing in para 11 which can be construed as petitioner-wife

has to join the respondent-husband for filing divorce petition for mutual

consent as is submitted by Ld.counsel for petitioner-wife.

No further directions are required to be passed in the present petition.

The same stands disposed of accordingly.

VEENA BIRBAL, J May 14, 2012 ssb