Satish Mehra vs State
2017 Latest Caselaw 2244 Del

$ 27
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Decided on : 5th May, 2017
+       W.P.(Crl.) 948/2012 & Crl.M.A.Nos. 10362/2014, 14629/2015,
        15740/2015, 15971/2015
        SATISH MEHRA                                ..... Petitioner
                          Through:    Petitioner in person.

                          versus

        STATE                                     ..... Respondent
                          Through:    Ms. Nandita Rao, ASC with
                                      ASI Ram Dev, PS G.K-1
                                      Ms. Arunima Dwivedi & Mr.
                                      Ranjan Sharma, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                             ORDER (ORAL)

1. The writ petitioner (non-applicant) and the second respondent (the applicant) were married to each other on 18.2.1980. Their marriage ran into rough weather and they came to be locked in litigation in various proceedings including a petition moved by the applicant seeking maintenance allowance for which, it having been granted, she filed execution case No. 231/2011 which eventually reached the family court at Saket Court Complex. The petitioner filed the writ petition (criminal) No. 948/2012, in which the present application has been moved, seeking quashing of the said execution proceedings and orders passed in its wake.

2. It appears that the petitioner had also filed another petition it being CM (Main) No. 1292/2011. On some of the dates of hearing, the present writ petition and the said other petition were heard together. Eventually, the record shows, with some assistance from the Court, the parties agreed to resolve the dispute and made statements before the learned Single Judge then in seisin of these matters on 24.9.2013 setting out the terms on which they had entered into Memorandum of Understanding dated 24.9.2013.

3. Noticeably, one of the terms of settlement of the said Memorandum of Understanding was that the parties were to approach Hon'ble Supreme Court, by joint petition, for grant of divorce with prayer for waiver of the statutory period of six months on the ground the marriage had broken down irretrievably. Though it was clearly spelt out in the said memorandum of understanding that the agreement would not affect the rights of the parties vis-à-vis the property held jointly in their names, it appears that as part of the bargain, the applicant had agreed to relinquish her rights towards maintenance allowance.

4. The parties took out proceedings before the Supreme Court. It may be added here that during the pendency of such proceedings before the Hon'ble Supreme Court, the parties had been referred to mediation as some further part of the dispute required to be ironed out. Since the parties could not resolve the dispute through such mediation process such efforts did not bear fruit. It is conceded by the non- applicant (writ petitioner), as is stated in the application (Crl.M.A.

10362/2014), that Hon'ble Supreme Court did not accept the request and the special leave petition came to be dismissed followed by dismissal of IA 5-6/2013 by order dated 31.1.2014.

5. Be that as it may, in the wake of dismissal of the said proceedings before the Supreme Court, the applicant (second respondent) has approached this Court by Crl.M.A. 10362/2014 seeking revival of the proceedings in the writ petition and for recall of the order dated 24.9.2013. The prayer is resisted by the writ petitioner.

6. Having heard both sides, it is clear that the writ petitioner (non- applicant) is not interested in re-opening of the proceedings in the writ petition. Instead, his position is that after the dismissal of the petition by the Supreme Court, he had prosecuted his petition for divorce it being HMA 370/2010 (old no. 527/2005 and current no. 29/2014) which was allowed by the family court for West District by judgment dated 4.7.2014 thereby dissolving the marriage of the parties against the applicant (second respondent) on the grounds of cruelty and desertion under Sections 13(1) (ia) and (ib) of Hindu Marriage Act, 1955. In this context, it, however, also needs to be noted that the counsel for the second respondent submitted, and the writ petitioner conceded that appeal of the second respondent against the said divorce is pending in this Court.

7. The basic concern of the second respondent against the above backdrop is that under the cover of the order dated 24.9.2013 passed in the writ petition, on the basis of memorandum of understanding dated

24.9.2013 she stands deprived of her right to maintenance which was the subject matter not only of the execution case before the family court but also by way of application under Section 24 of the Hindu Marriage Act and complaint case under Section 125 of the Code of Criminal Procedure, 1973 (Cr.P.C), proceedings that had come to be dropped in the wake of MOU.

8. The very fact that the writ petitioner prosecuted his divorce petition further to adjudication, after dismissal of the petition by the Supreme Court reveals that the memorandum of understanding had actually not worked out to the advantage of or been acted upon by both sides. Since the parties could not seek divorce by mutual consent, the terms of the memorandum of understanding dated 24.9.2013 cannot bind the second respondent in the same manner and by the same logic as by which the writ petitioner treated himself to be not bound by its terms so as to prosecute his divorce case to the point of adjudication by the family court.

9. The writ petition was filed by the non-applicant. He is the master of these proceedings. The proceedings arising out of the writ petition cannot be revived against his consent. In these facts and circumstances, the proper course is to give liberty to the applicant to approach the concerned courts where the proceedings in the nature of petition under Section 125 Cr.P.C., or under Section 24 of the Hindu Marriage Act, or execution proceedings in the wake of orders that may have been passed on such petitions with the request for their revival subject, of course, to legitimate objection, if any, that may be raised by

the non-applicant which, undoubtedly, cannot be anything connected with the orders that may have been passed on the file of the writ petition No 948/2012 or CM(M) No.1292/2011. To put it simply, the applicant's prayer for revival of the proceedings mentioned above would require to be considered and adjudicated upon by the concerned court (s) without feeling bound by anything said in the order dated 24.9.2013.

10. These proceedings are brought to an end with above observations, thereby disposing of all pending applications.

11. Dasti to both sides.

R.K.GAUBA, J.

MAY 05, 2017 nk