Smt. Sulekha Rana vs Shri Satyender Rana
2013 Latest Caselaw 881 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) NO.76 OF 2009

                                       Decided on : 21st February, 2013

SMT. SULEKHA RANA                                ...... Petitioner
                 Through:             Mr.R.N.Jindal, Adv.

                       Versus

SHRI SATYENDER RANA                        ...... Respondent
                 Through:             Respondent in person.


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a Civil Miscellaneous Main petition filed by the petitioner

against the order dated 6.12.2008 passed by the Additional District

Judge, Delhi in M No.15-04 titled Satyender Rana Vs. Smt.

Sulekha Rana wherein the learned Additional District Judge

dismissed the application under Order 47 Rule 1 read with Section

151 CPC for recalling of the decree dated 5.7.2003 in case

No.550/2003.

2. Briefly stated the facts of the case are that the petitioner was

married to the respondent on 18.4.2000 according to Hindu rites

and customs. From the said wedlock, two children were born on

19.2.2001 (female) and 20.8.2002 (male).

3. Due to divergent nature, personal problem and temperamental

differences between the husband and the wife, they obtained a

decree of divorce on the basis of mutual consent.

4. The first motion petition under Section 13-B(1) of the Hindu

Marriage Act was allowed by the District Court, Tis Hazari, Delhi

on 3.5.2003 and the second motion petition under Section 13-B(2)

was allowed by Sh.S.C.Mittal, the then learned ADJ, Delhi on

4.6.2003. While allowing the second motion petition, the learned

ADJ had specifically noted that the statements of the parties on the

second motion had been recorded and the Court was satisfied that

there was no collusion between the parties nor was any fraud,

misrepresentation produced by either of the parties and

accordingly, their marriage was dissolved by a decree of divorce.

The learned Additional District Judge observed that no useful

purpose would be served by waiting for another period of six

months. The petition was then adjourned to 2.7.2003 and finally

disposed of on 5.7.2003. The petitioner/Sulekha after obtaining the

decree of divorce in the year 2003 filed an application after

considerable length of time that is after almost a year in the Civil

Court challenging the decree of divorce passed by Sh.S.C.Mittal,

ADJ on 4.6.2003 stating that the said decree was obtained by fraud.

The Civil Court vide order dated 18.12.2003 dismissed the suit for

declaration (Suit No.263/2003 before the Senior Civil Judge) of the

decree of divorce as null and void on the ground of lack of

jurisdiction and on fraud. The appellant thereafter filed an appeal

against the said order of the learned Civil Judge dated 18.12.2003

which was also withdrawn by him on 23.4.2005. Thereafter, the

petitioner filed an application u/O 47 Rule 1 read with Section 151

CPC for recalling of the decree of divorce dated 5.7.2003 making

allegations that misrepresentation of facts and fraud was played on

her. This application was rejected by the impugned order dated

6.12.2008. The learned Additional District Judge dealt with the

plea of fraud in extenso in its order stating that there was nothing

on record to suggest that at the time of recording of the statement

in the first motion or even in the second motion her signatures were

obtained under coercion or fraud. On the contrary, the Court noted

that the statements of the parties were recorded and the petition for

second motion was duly supported by the affidavit of the present

petitioner which was duly attested by the Commissioner which

clearly shows that she had voluntarily came forward along with her

husband/respondent for dissolution of her marriage on the basis of

mutual consent.

5. It is because of this reason, the Court was satisfied that the

marriage was annulled by a decree of divorce as the statements

were made by the parties voluntarily and the consent was not

vitiated by fraud or misrepresentation and accordingly, the

application for review of the decree of divorce was rejected.

6. Feeling aggrieved, the present petition under Article 227 of the

Constitution of India has been filed.

7. I have heard the learned counsel for the petitioner and perused the

judgments relied upon by him.

8. No doubt, the Apex Court in the case titled S.P. Chengalvaraya

Naidu vs. Jagannath; (1994) 1 SCC 1 has held that the fraud, if

detected at whatever stage, will vitiate the entire proceedings which

may include even decree of divorce but then this must be proved by

the parties who have alleged that the fraud has been played to the

satisfaction of the Court.

9. In the instant case, not only the contemporaneous conduct of the

petitioner but even the subsequent conduct of the petitioner after

passing of a decree of divorce is not at all compatible with the

stand taken by her that there was any fraud played on her for the

purpose of obtaining her signatures. This is on account of the fact

that admittedly a decree of divorce on the basis of mutual consent

requires filing of two motions (first motion and the second motion)

and in between there has to be a gap of six months. The petition

has to be duly supported by an affidavit, averments have to be

made in the petition that there is no collusion between the parties

and that there is voluntariness on the part of the parties in getting

their marriage annulled. In addition to this, on both occasions, the

statements of the parties were recorded and the petitioner had never

complained that her signatures were obtained by misrepresentation

or fraud. It is only once the decree was passed that she chose to

file a suit declaring the decree to be null and void. Under Section

80 of the Evidence Act, there is a presumption of correctness

attached to the judicial proceedings; the petitioner has not been

able to bring out even an iota of evidence on record to show that

her signatures or consent was obtained by the respondent by fraud,

coercion or inducement. Simply by making an allegation of fraud

would not be good enough, there must be some prima facie

evidence also produced by the parties either by way of

circumstance or some document which will impel the Court to look

into the matter. This has not been done and the application of the

petitioner has been rightly rejected by the trial court.

10. There is no jurisdictional error, impropriety, illegality or

incorrectness in the order of the learned Additional District Judge

in rejecting the review application.

11. Accordingly, I feel that this Court in exercise of its powers under

Article 227 of the Constitution of India cannot interfere with the

findings of the trial court. Hence the appeal is dismissed.

V.K. SHALI, J.

FEBRUARY 21, 2013 RN