D S vs K C & Anr.
2018 Latest Caselaw 259 Del

$~40
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Judgment: 11th January, 2018

+       LPA 274/2016 & C.M.27932/2017
        DS                                                ..... Appellant
                          Through:      Mr.Kailash Vasdev, Senior Advocate
                                        with Mr.Shailendra Swarup,
                                        Mr.K.K.Patra, Ms.Aparajita Swarup,
                                        Mr.Arjun Singh, Mr.Sumer Singh
                                        Sandhu, Ms.Limayinla Jamir and
                                        Ms.Mohita Srivastava, Advocates
                                        alongwith appellant in person.
                          versus


        K C & ANR.                                        ..... Respondents
                          Through:      Mr.Vishal Gosain, Mr.Kushdeep Gaur
                                        and Mr.Harsh Bora, Advocate for
                                        respondent no.1 alongwith respondent
                                        no.1 in person.
CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)

Review Pet. No.252/2017 in LPA 274/2016

1. This LPA was disposed of by an order dated 28.03.2017 by a bench comprising of Ms.G.Rohini, the then Hon'ble the Chief Justice of this Court and Ms.Sangita Dhingra Sehgal, J. Subsequently a review petition bearing no.252/2017 has been filed by the appellant which was marked to the present bench. Since the genesis arises out of matrimonial dispute and parties had shown an inclination for an

amicable settlement, we had directed the presence of the parties on more than one occasion. The matter was taken up in Chambers on 10 th January, 2018 when detailed discussion had taken place between the parties. Broad terms of settlement were discussed. The matter was adjourned for today to enable the parties to consult their family members and confer with their respective lawyers. The parties have arrived at an amicable settlement. The parties have agreed to settle all their disputes and differences and have agreed that the present settlement would bind and relate to the following litigations, which are pending between the parties:

S. No. Proceedings Filed By Next Date

1 In the Court of Principal Judge K C 03.8.2018 Family Court Karkardooma Court, HMA No. 519 of 2016: K C v. D S Chauhan Petition under Section 13(I)(ia) of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of cruelty

2 GWP 26 of 2014 under Section 25 K C 12.1.2018 of the Guardians & Wards Act before Principal Judge, Family Courts, Saket, Delhi

3 Meera Chauhan & Anr. v. D S Parents of Mr. K C 25.1.2018 Chauhan C.A. No. 58/2015 NEW NUMBER 204328/2016 pending before Additional Sessions Judge, Saket Courts challenging issue of notice vide order dated 27.6.2013

4 Before Ms. Richa Gosain Solanki, Ld. Ms. D S 1.2.2018 MM, Dwarka Courts in response to the application filed by D C with the I/O (in FIR No. 180/13 regd. By CAW Cell, Nanakpura P.S. against K C) NEW NUMBER 4991744/2016

5 CC No. 1594/3/13 in the court of Ms. D S 8.2.2018 Ms. Deepti Devesh, Metropolitan Magistrate, Mahila Court, Saket Courts, New Delhi under the provisions of the Protection of Women from Domestic Violence Act, 2005 NEW NUMBER 614509/2016

6 Suit No. 187/16, In the court of Mr. K C 20.2.2018 District Judge, Tis Hazari Court, New Delhi: K C vs. National Commission for Women and D S

7 D S v. K C C.A. No. 39/15 New Ms. D S 27.2.2018 Number : 20439/16 pending before Additional Sessions Judge (Neera Bharioke), Saket Courts challenging the legality, validity and correctness of the order dated 15.07.2015 concerning maintenance and residence

8. FIR No. 38 of 2015 u/s 66A with CR K C 31.3.2018 Park police station and CC/ 04/1/15 K C vs. D S Chauhan & Anr.

in the court of Metropolitan Magistrate, Saket District Court

9. W.P(Crl) No. 3306 Of 2016 in the D S 6.4.2018 Delhi High Court u/s under articles 226 & 227 against registration of FIR No. 38 of 2015 u/s 66A with CR Park police station

10. S.A 168/16, D S v I.D.B.I. Bank D S Property pending before Debt Recovery auction after Tribunal, Lucknow relating to flat in 15 days of Noida notice dated 30.12.2017

2. In this case, marriage between the parties was solemnized on 11.02.2008. Out of their wedlock one son, namely, Vivaan was born, who is presently four years of age. The parties have invested in three

properties jointly being (i) a Flat No.OL-II-1903, 19th Floor, Block Eldeco Olympia II, Eldeco Utopia, Plot No.003, Sector -93 A, Noida Uttar Pradesh, (ii) a Flat No.SPL/1201, Sikka Karnam Greens, Sector 143B, Noida and (iii) a plot No.D-28 measuring 239.2 sq. yds. LA City, Village Kanswali Kothri, Dehradun. The parties have agreed to seek a divorce by mutual consent. Parties have agreed that the flat in Sector 93, Noida carries a liability of approximately 45 lakhs towards bank loan and property at Dehradun carries a liability of approximately 10 lakhs. It is agreed that the property in Eldeco Olympia II, Noida would fall exclusively to the share of the wife while the flat in Sikka Karnam Greens, Noida would fall exclusively to the share of husband (both free from all encumbrances) and the plot at Dehradun would stand transferred exclusively to the name of the son Vivaan through his legal guardian i.e. his mother. It is expressly agreed that the mother will have no right to sell the property at Dehradun under any circumstances without the concurrence and written consent of the husband. However, on attaining majority, the son would be at liberty to deal with the property in any manner he so chooses. In addition to the above arrangement, the husband will pay Rs.35 lakhs in full and final settlement with respect to all claims, dues and alimony in the following manner.

(i) Rs.20 lakhs at the time of making statement and signing at the first motion for divorce by mutual consent.

(ii) Rs.10 lakhs at the time of making statement and signing at the second motion for divorce by mutual consent

(iii) Rs.5 lakhs at the time of quashing of FIR no.180/13, PS Nanakpura, Delhi filed under Section 498A/406/34 IPC.

(iv) It is also agreed that the proceedings under the Domestic Violence Act and Guardian and Wards Act relating to custody shall remain stayed till the grant of divorce and till all the terms of settlement are complied with.

(v) FIR bearing no.38/2015, PS Chitranjan Park, Delhi filed under Section 66A of Information Technology Act, 2006 has been registered on a complaint by the husband against the wife and members of her family members in which a chargesheet has been filed and quashing petition is pending in this Court. The husband agrees to appear in person or through counsel and also submit an affidavit that he would have no objection if the FIR is quashed. The affidavit would be filed within two weeks from today.

(vi) It is agreed that the Suit No.187/16 pending in the court of learned District Judge, Tis Hazari shall be dismissed as withdrawn. Since the suit is being withdrawn pursuant to the settlement arrived at through mediation of this Court, the plaintiff in the suit i.e. the husband would be entitled to refund of court fee paid therein.

(vii) It is agreed that the permanent custody of the child will remain with the wife, since the husband works with the Merchant Navy. He would be entitled to meet the child on every Saturday and Sunday of each month for three hours at a stretch to be extended if the child is comfortable and when he is not sailing on every weekend for three hours after giving prior notice of at least two weeks to the wife in

order to enable her to make appropriate arrangement for the meeting of the child with his father. The family of the husband shall also be entitled to meet the grandson after notice along with his father. After two years from today, provided the child is comfortable with his father, he would be entitled to share 1/3rd of the long vacations with the father including overnight stay. On all festivals, custody of the child would be shared between the mother and father. As per the mutual consent and availability of the father, the child will be entitled to spend his birthday with his father and the mother and the father will be entitled to spend his birthday with his son. For the first six husband's visitations till the child is comfortable, the child will be met at a place convenient to the parties in the unobtrusive presence of the mother. Thereafter, on all visitations, the father will pick up the child from the mother's house and return custody to her at her house. It is agreed that the name of the child will be read as 'Vivaan Rudainwal Chauhan' and in all documentation his name would be shown as son of K C.

(viii) The husband will execute a Relinquishment Deed in the name of the wife with respect to Flat in Eldeco Olympia II, Noida and wife will execute a Relinquishment Deed in the name of the husband with regard to the Flat in Sikka Karnam Greens Both, Noida simultaneously. Both the parties will transfer the Dehradun property in favour of their son through his guardian, his mother.

(ix) The husband will clear the liability of the flat in Eldeco Olympia II, Noida not later than 12 months from today.

3. It is made clear and understood that the terms of the settlement shall be treated as an undertaking to the court. The parties have been explained the consequences of breach of the undertaking. Parties submit that they have understood the terms of settlement and they have agreed and undertake to sign the same out of their own free will and without any coercion and pressure and agree and undertake to comply with the same in letter and spirit. Parties also agree that in view of the settlement, none of the parties will interfere in their respective lives and not use the past litigations and any observations made in any Court including these proceedings and contents of FIR etc in future either to damage their reputation or otherwise.

4. It is made clear that the names of the parties as reflected in the order under challenge and W.P. (C) 7359/2015 will remain masked and the identity of either of the parties will not be disclosed except the first letter of their respective names to maintain the confidentiality of the proceedings and also to ensure that the observations made in the said orders should not cause any prejudice to the parties herein.

5. It has been mutually agreed between the parties that the petition for divorce by mutual consent in terms of section 13B of the Hindu Marriage Act as regards the first motion and the second motion will be moved simultaneously on the same day accompanied with an application for seeking waiver of the six months statutory period as defined under the Act. In this regard, the respondent no.1 has agreed to make necessary arrangements with regard to the first and second installment aggregating to Rs.30 lacs and pay the same to the appellant on completion of first and second motion on the same day when the

divorce petition (both first and second motion) will be taken up simultaneously for its disposal. The parties will move the petition for divorce by mutual consent in the pending divorce petition bearing HMA no.519 of 2016 pending in Karkarduma District Court, Delhi.

6. The review petition stands disposed of.

G.S.SISTANI, J.

SANGITA DHINGRA SEHGAL, J JANUARY 11, 2018 rb /