Punjab-Haryana High Court
Manoj Kumar vs Smt. Harsh on 25 January, 2013
Bench: S.S. Saron, Paramjeet Singh
FAO No.M-14 of 2013 :1:
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
FAO No.M-14 of 2013
Date of decision: 25.01.2013
Manoj Kumar .....Appellant
Versus
Smt. Harsh ....Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE PARAMJEET SINGH
Present:- Mr. D.S. Bali, Sr. Advocate along with
Mr. Aman Vashisht, Advocate for the appellant.
Mr. Amit Kumar Jain, Advocate,
for the respondent-caveator.
----
S.S. Saron, J.
Heard learned counsel for the parties.
The appeal has been filed by Manoj Kumar against the order dated 10.11.2012 passed by the learned Additional District Judge, Jind whereby the ex parte decree dated 14.05.2009 dissolving the marriage between the parties has been corrected.
The marriage between the parties was solemnized at Jind according to Hindu rites and ceremonies by way of 'Saptapadi' on 31.01.2001. From the marriage, the parties had a son namely Mridul, who was born at Vasco De-Gama, Goa on 13.07.2002. On account of matrimonial discord between the parties, the respondent- Smt. Harsh filed a petition under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') on 05.02.2009 seeking dissolution of FAO No.M-14 of 2013 :2: the marriage between them by a decree of divorce; besides for the grant of permanent alimony under Section 25 of the Act and also for retaining the custody of the minor child under Section 26 of the Act and for recovering all dowry articles and 'streedhana' under Section 27 of the Act. The appellant was proceeded against ex parte in the said petition. The learned Additional District Judge, Jind on 14.05.2009 allowed the petition of the respondent-Smt. Harsh. The marriage between the parties was dissolved by a decree of divorce. The respondent-Smt. Harsh was also held entitled to retain the custody of the child namely Mridul and recover her dowry articles and 'streedhana'. Decree sheet was ordered to be drawn accordingly and the file was ordered to be consigned to the record room.
In the decree sheet that was prepared, it was only mentioned that the marriage between the parties was dissolved by a decree of divorce. The other reliefs i.e. the respondent-Smt. Harsh is also entitled to retain the custody of the child namely Mridul and recovery of dowry articles and 'streedhana' were inadvertently not recorded in the decree sheet.
The appellant-Manoj Kumar aggrieved against the ex parte judgment and decree dated 14.05.2009 passed by the learned Additional District Judge, Jind filed FAO No.M-149 of 2010 in this Court which was withdrawn by him through his counsel on 22.04.2010 by stating that the appellant wants to withdraw the appeal with liberty to file an application for setting aside the ex parte decree. This Court dismissed the appeal as withdrawn with liberty aforesaid. FAO No.M-14 of 2013 :3: It is submitted by the learned senior counsel appearing for the appellant that an application seeking set aside of the ex parte decree was filed which was, however, also withdrawn as there were some technical defects therein.
The respondent- Smt. Harsh realising that the reliefs regarding the custody of the minor and regarding recovery of dowry articles and 'streedhana' had not been incorporated in the decree sheet, filed an application dated 04.02.2012 (Annexure P-6) for correcting the decree. The said application has been allowed by the learned Additional District Judge, Jind vide impugned order dated 10.11.2012. It was inter alia observed that the reliefs granted to the decree holder/respondent -Smt. Harsh regarding custody of the minor child and recovering her dowry articles and 'streedhana' were not reflected in the decree sheet on account of omission. So the application was allowed and the following lines that: "the petitioner is also entitled to retain the custody of the child Mridul and to recover the dowry articles and 'streedhana'" were ordered to be added after the words "and marriage of respondent is dissolved by decree of divorce". Aggrieved against the said order the appellant-Manoj Kumar has filed the present appeal.
The learned senior counsel appearing for the appellant has contended that the learned trial court has travelled beyond its jurisdiction and corrected the decree which was not liable to be corrected. It is further contended that the appellant has filed a petition (Annexure P-4) in the Court of Civil Judge (Senior Division), FAO No.M-14 of 2013 :4: Jind seeking custody of the minor child Mridul Kumar. In the said petition, the respondent-Smt. Harsh has filed her reply (Annexure P-5). It is submitted that the fact that the order giving custody of the minor to the respondent in terms of the decree dated 14.05.2009 which has now been corrected should not in any case affect the rights of the appellant to claim the custody of the minor in the proceedings initiated by him in terms of the petition (Annexure P-4). It is also submitted that the correction of order dated 14.05.2009 passed by the learned Additional District Judge, Jind has materially prejudiced the rights of the appellant and the appeal against the same is liable to be disposed of with the clarification that the decree that has been passed would not in any manner affect the rights of the appellant to claim the custody of the minor child namely Mridul.
In response, learned counsel for the respondent- caveator has submitted that a clerical omission has been corrected. In fact all the reliefs which were granted were liable to be incorporated in the decree in terms of Order XX Rule 6 of the Code of Civil Procedure (for short 'CPC'). This appeal is, therefore, liable to be dismissed.
We have given our thoughtful consideration to the contentions raised by the learned counsel appearing for the parties. The petition filed by the respondent-Smt Harsh on 05.02.2009 for dissolution of the marriage by a decree of divorce was also for the grant of permanent alimony under Section 25; besides retaining the FAO No.M-14 of 2013 :5: custody of the minor child under Section 26 of the Act and for recovering all dowry articles and 'streedhana' under Section 27 of the Act. The marriage between the parties was dissolved. Besides, the respondent was also granted the reliefs of custody of the minor child and recovery of dowry articles and 'streedhana'. The decree was passed accordingly. It was only on account of an inadvertent omission that the latter two reliefs granted in respect of retaining the custody of minor and for recovering all dowry articles and 'streedhana' under Sections 26 and 27 of the Act were not incorporated in the decree sheet.
"Decree" has been defined in Section 2(2) of the CPC to mean the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Therefore, what has been determined in the suit is expressed by way of a formal decree. Besides, Order XX Rule 6 CPC provides for contents of decree which reads as follows:-
" (1) Contents of decree.- The decree shall agree with the judgment; it shall contain the number of the suit, the (names and descriptions of the parties, their registered addresses) and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.FAO No.M-14 of 2013 :6:
(3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter. "(Emphasis added).
A perusal of Sub Rule (1) of Order XX Rule 6 shows that a decree is to clearly specify the reliefs granted or other determination of the suit. A decree that is to be drawn must agree with the judgment. The reliefs of custody of minor child and return of dowry articles and 'streedhana' were granted in the judgment. Therefore, the same were liable to be incorporated in the decree sheet. It was an inadvertent omission, which the Court has the power to correct in terms of Section 152 CPC which reads as under:-
"Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties".
In the circumstances, it may be noticed that it is only a formal correction of clerical mistake which arose from an accidental omission that has been carried out in the decree sheet and the same was even otherwise liable to be incorporated in the decree sheet. In case, the appellant has any right under the law for the custody of the minor child, he may pursue the same in accordance with law. The effect of the decree dated 14.5.2009 passed in present case and whether it affects the rights of the parties is not to be gone into the proceedings seeking correction of the decree sheet. The same may be agitated in accordance with law in the subsequent proceedings FAO No.M-14 of 2013 :7: seeking custody of the minor. A Court while exercising its jurisdiction to correct a decree is not to go into the question or determine as to what would be the effect of the decree in the subsequent proceedings between the parties. It is for the said court to go into this aspect if such a contention is raised.
Therefore, there is no merit in the present appeal and the same is dismissed.
(S.S. SARON) JUDGE (PARAMJEET SINGH) 25.01.2013 JUDGE sonika