Himachal Pradesh High Court
Smt. Sangita Sharma vs Rohit Kalia" Being on 14 June, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14th DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
.
CRIMINAL MISCELLANEOUS PETITION NO.2632 OF 2021 IN
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO.191 OF
2016
Between
1. SMT. SANGITA SHARMA
W/O SHRI ROHIT KALIA
D/O SHRI SOM NATH SHARMA
R/O VILLAGE KANTE, TEHSIL HAROLI,
DISTRICT UNA
2. MASTER AADVIK SHARMA
(DOB 28.10.2014) MINOR
S/O SMT. SANGITA SHARMA
AND SHRI ROHIT KALIA
THROUGH HER MOTHER AND NATURAL GUARDIAN
SMT. SANGITA SHARMA
W/O SHRI ROHIT KALIA R/O VILLAGE KANTE
TEHSIL HAROLI, DISTRICT UNA
...PETITIONERS - NON-APPLICANTS.
(BY SHRI Y.P. SOOD, ADVOCATE)
AND
SHRI ROHIT KALIA
S/O SHRI BALDEV RAJ KALIA
R/O HOUSE NO 2567/1, SECTOR 44C,
CHANDIGARH
....RESPONDENT - APPLICANT
(BY SHRI JIYA LAL BHARDWAJ, ADVOCATE)
Reserved on : 22.3.2022
Decided on : 14.6.2022
Whether approved for reporting?
This application coming on for pronouncement this day, the
Court passed the following:
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ORDER
This application has been filed by respondent-
applicant Rohit Kalia, seeking clarification to the effect that .
whether learned Principal Judge, Family Court, Una, Himachal Pradesh, had to follow the procedure of recording statements of parties afresh or had to pass decree for divorce on the basis of statements already recorded before this Court in CRMMO No.191 of 2016, titled as Sangita Sharma & another v. Rohit Kalia.
2. Matrimonial disputes between the parties have been settled through mediation conducted in CRMMO No.191 of 2016. Terms and Settlement arrived between the parties were reduced into writing by learned Mediator on 19.4.2017, whereby all pending disputes between the parties were settled as per settlement recorded separately.
3. A Divorce Petition between the parties, being HMA No.166 of 2017, titled as Sangita Sharma v. Rohit Kalia, which was pending adjudication in the Court of District Judge, Una, Himachal Pradesh. It was agreed with respect to this petition, in the Terms of Agreement, as under:
"That Mr. Rohit Kalia and Ms. Sangita Sharma will put an end to their matrimonial tie and will separate through a decree of divorce by mutual consent on the ground that the parties are living separately for last more than four years and there is a complete break down in their marital status and the married life between them has reached a stage of irretrievable union. Thus, the pending divorce petition ::: Downloaded on - 15/06/2022 20:03:09 :::CIS Cr.MP No.2632/2021 in CRMMO No.191/2016 ...3...
titled "Ms. Sangeeta Sharma vs. Rohit Kalia" being HMA No.166 of 2017 pending in the Court of District Judge, Una H.P. fixed for 16th May, 2018 will be treated as a petition for mutual divorce under Section 13(1)B under the Hindu Marriage Act and shall be withdrawn .
from the records of the said Court to the Hon'ble High Court of Himachal Pradesh whereafter the decree for mutual divorce will be passed between the parties on the basis of the present settlement by the Hon'ble High Court."
4. Thereafter, statements of parties, i.e. Rohit Kalia and Sangita Sharma were also recorded, on oath, on 21.4.2018, wherein both of them have stated that Terms and Settlement so arrived at between them shall be read not only in this case but also in all other cases which are pending between them in various Courts.
5. A Coordinate Bench of this Court, vide Order dated 23.5.2018 disposed of CRMPM No.191 of 2016, in terms of the settlement so arrived at between the parties, with further clarification that all the cases inter se parties, which have been mentioned in the Order, are also ordered to be closed.
6. It is noticeable that in Para-2 of aforesaid Order dated 23.5.2018, at Serial No.1 pendency of petition HMA No.166 of 2017 between the parties has been mentioned.
Therefore, HMA Petition was ordered to be closed in terms of settlement and in settlement it was agreed by the parties to dissolve the marriage by treating the said petition as petition under Section 13B of the Hindu Marriage Act for dissolution of marriage on the basis of mutual consent.
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7. Intent and purport of Terms and Settlement and Order dated 23.5.2018 is that petition HMA No.166 of 2017 was also to be closed by dissolving the marriage of the parties .
with mutual consent.
8. This Court, while deciding Cr.MPs No.1183 of 2018, 413 of 2019, 686 of 2020, 1696 of 2020 in Cr.MMO No.191 of 2016 alongwith COPC No.81 of 2019, has observed as under:
"14. For tone and tenor of the order passed by co- ordinate Bench of this Court and also for terms and conditions of the settlement, petition HMA No. 166 of 2017, titled Sangita Sharma Vs. Rohit Kalia was to be transferred to High Court for passing appropriate order for dissolution of marriage of parties with mutual consent. Instead thereof record has been requisitioned and petition is alive and pending in the Court of learned District Judge, Una. Be that as it may, in terms of settlement arrived at between the parties and subsequent orders passed by co-ordinate bench of this Court, petition HMA No. 166 of 2017 is to be disposed of by passing a decree of dissolution of marriage between parties as agreed. Original side jurisdiction to decide such petition is with learned District Judge. Therefore, learned District Judge has to decide the HMA No. 166 of 2017 by treating it as a petition for mutual divorce as agreed by parties in amicable settlement."
9. In the aforesaid facts and circumstances, direction with respect to petition HMA No.166 of 2017 was given as under:
"(xv) As agreed, in terms of settlement, for dissolution of marriage of Rohit Kalia and Sangita Sharma, petition filed by the wife, bearing HMA No. 166 of 2017, pending in the Court of District Judge, Una, Himachal Pradesh, shall be considered a petition for dissolution ::: Downloaded on - 15/06/2022 20:03:09 :::CIS Cr.MP No.2632/2021 in CRMMO No.191/2016 ...5...
of marriage with mutual consent and an appropriate decree is to be passed accordingly. Jurisdiction to pass such decree is with District Judge, Una. Therefore, record of HMA No. 166 of 2017 is ordered to be sent back to the said Court for passing appropriate decree .
on the basis of mutual consent for dissolution of marriage, on the date fixed for presence of parties before learned District Judge, Una, as the parties have already agreed for that.
(xvi) Parties are directed to appear in the Court of learned District Judge, Una, either personally or through counsel, on 30th June, 2021, by putting physical or virtual appearance, as possible and permissible on account of Pandemic Covid-19, for passing final judgment and decree for dissolution of marriage on the basis of mutual consent.
(xvii) Further, no fresh notice shall be issued by the learned District Judge for presence of parties on failure to appear by either party, but the petition shall be taken up and disposed of by the learned District Judge, by passing appropriate order and decree for dissolution of marriage on the basis of consent expressed by the parties before learned Mediator as well as in their statements recorded on oath, in the Court. Certified copies of statements as well as terms of settlement have already been produced by the wife before learned District Judge, which are lying in the record of HMA No. 166 of 2017."
10. It is apparent from the aforesaid order that no fresh statements of parties were necessary to be recorded as parties were directed to appear before the Court (District Judge/Family Court) either personally or through counsel with further direction that on failure of either party to appear, no fresh notice would be issued but the petition would be taken up and disposed of by passing appropriate order and decree for dissolution of marriage on the basis of consent expressed ::: Downloaded on - 15/06/2022 20:03:09 :::CIS Cr.MP No.2632/2021 in CRMMO No.191/2016 ...6...
by the parties before learned Mediator as well as their statements recorded on oath in the Court.
11. In present case, practically, divorce by mutual .
consent had been ordered vide Order dated 23.5.2018, passed by Coordinate Bench, whereby all matters were ordered to be closed in terms of settlement and as per the said Terms and Settlement, parties were in agreement to dissolve the marriage with mutual consent. The petition HMA No.166 of 2017 was returned to learned District Judge/Family Court for passing a formal decree, for the reason that the said case was not transferred to the High Court but only record thereof was requisitioned and, thus, the said petition was not pending adjudication in this Court but, as agreed between the parties in the said petition, order for dissolution of marriage on the basis of mutual consent stands passed by Coordinate Bench on 23.5.2018 and, thus, District Judge/Family Court has to pass formal decree accordingly.
12. Learned counsel for the respondent-applicant has referred to pronouncement of the Supreme Court in Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, wherein it has been held that a party to the petition filed for divorce, by mutual consent, can unilaterally withdraw its consent at any time till passing of the divorce decree.
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13. Issue regarding existence of such right to withdraw is an issue, independent of subject matter of present application. It is a separate issue, not to be adjudicated in this .
application. In any case, in present case, during pendency of the petition in this Court, after communication of consent by the parties, no such prayer was ever made. After return of record of Petition HMA No.166 of 2017 to District Judge/Family Court, it was listed before the said Court more than once before passing decree of dissolution of marriage by the said Court. As to whether any request to withdraw its consent was communicated or submitted by either party before the said Court or not is not to be considered by Single Bench as jurisdiction to hear and decide the petition/ appeal etc. against the order/judgment passed by the Family Court lies with the Division Bench.
14. Considering the tone and tenor as well as essence of the order passed by Coordinate Bench of this Court, in my opinion no fresh statements of parties were required to be recorded by the District Judge for passing a decree for dissolution of marriage, under Section 13B of the Hindu Marriage Act, as agreed between the parties.
Application stands disposed of, in aforesaid terms.
( Vivek Singh Thakur )
June 14, 2022(sd) Judge.
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