Jutta Oberoi vs Navin Oberoi
2013 Latest Caselaw 4184 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Order delivered on: September 16, 2013

+                        CM(M) No.1124/2012

      JUTTA OBEROI                                            ..... Petitioner
                         Through       Mr.Jagjit Singh, Adv. with Jutta
                                       Oberoi in prson.

                         versus

      NAVIN OBEROI                                         ..... Respondent
                         Through       Respondent in person.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. In the present matter, both the parties had requested for a grant of dissolution of marriage under Section 28(2) of The Special Marriage Act, 1954 (hereinafter referred to as „the Act‟) and vide judgment and decree dated 7th October, 2004 this Court ordered for the same.

2. The judgment recorded the statements of both the parties to the extent of permanent alimony, stridhan and other mutual settlements. However the same was not recorded in the decree.

3. Thereafter the both the petitioners filed a joint application under Sections 151, 152 and 153 read with Section 37 of Act for correction of dissolution of marriage decree dated 7th October, 2004 so as to include the settlement terms within the decree.

4. It is said that the need for the same was felt when petitioner No. 1 wanted to transfer one of the properties, situated in Nanital, which she

acquired via the mutual settlement made and recorded in the dissolution of marriage proceedings. During this sale, it was pointed out that in order to constitute the transfer of title, the decree ought to contain the directions of the Court followed by a registration and/or execution of transfer/sale deed by respondent/petitioner No. 2, in favour of his ex-wife i.e. petitioner No. 1. It is contented by the petitioners that the correction of a decree is permissible under CPC as well as under provisions of Act, and that the said correction will not alter the statement or judgment rendered by the learned Court but it is only a ministerial act so that the parties may be able to enforce their rights.

5. Vide the order dated 19th September, 2012, after due perusal of the contentions and all legal provisions the Additional District Judge, dismissed the above mentioned application and held that: in the present matter there is no defect or error or clerical or arithmetical mistake in the decree. The relief claimed was for mutual dissolution of marriage as per Act and that has been duly incorporated in the decree dated 7th October, 2004. Moreover, the decree cannot contain the contents of the judgment in entirety.

6. Another angle that must perused is if in case the wife is not paid alimony/maintenance she is left with no right to execute the decree because this decree does not make any provision for permanent alimony and maintenance, and in such a situation the only remedy available would be fresh proceedings, which goes against the spirit of law.

7. Mr.Jagjit Singh, learned counsel, has referred to the following decisions in support of his submissions:

i) In the case of Most Rev. P.M.A. Metropolitan and Others Vs. Moran Mar Marthoma Mathews and Anr., (1996) 8 SCC 470 the court held as under :

"8. It is brought to our notice that the decree prepared by this Court pursuant to the judgment dated 20.6.1995 has been wrongly prepared. This is agreed to by both Shri Parasaram, learned counsel for the Patriarch group and Shri F.S. Nariman, learned counsel for the Catholicos group."

ii) In the case of G.C. Kumar & Ors. vs. Ashok Kumar & Ors., 92 (2001) DLT 1 (DB), the court held as under

"15.....Once the judgment is pronounced decree must be prepared in accordance with it.

16. We are in full agreement with the view taken aforementioned by various High Courts. In view of the various provisions of the Code of Civil Procedure, as noticed above, there is no manner of doubt that once a judgment is delivered and signed, there is no option left with the Court except to draw decree in terms of the judgment."

8. Aggrieved by this, the petitioners have jointly filed the present CM (Main) petition under Article 227 of the Constitution of India against the impugned orders dated 19th September, 2012.

9. It is not prevented by the court rather the law enables the court to grant decree recording settlement of alimony and maintenance. Hence, there is no bar in law from passing such a decree. The approach of the learned Judge is not in consonance with law and is contrary to Order 20 Rule 6 of CPC and to Section 37 of Act. Thus, the impugned order is quashed.

10. Under Section 37 of the Act the parties are allowed to apply to the court for passing of decree as per their settlement even for subject beyond the scope of suit to arrive at settlement. After examining the said provision, I am of the view that the learned Judge was fully empowered and is mandated in terms of Section 37 of Act to record in decree sheet about the factum of parties having mutually settled the issue of permanent alimony and maintenance.

11. Accordingly, the prayer made in the joint application filed by the parties under Sections 151, 152 and 153 read with Section 37 of the Act for correction of dissolution of marriage is allowed.

12. The present petition is disposed of accordingly.

(MANMOHAN SINGH) JUDGE SEPTEMBER 16, 2013