IMPORTANT POINT
Any party to a suit intentionally relinquishing any portion of his claim shall not afterwards sue in respect of the portion so relinquished.

JUDGMENT

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The appellant and respondent No.1 were married according to Hindu rites on 7.5.2004 and, from the wedlock were born a son (respondent No.2) and a daughter (respondent No.3), who are now about 11 years and 8 years respectively. It appears that the marriage ran into problem at some stage and all endeavours for reconciliation failed. The appellant and respondent No.1, both, are qualified doctors, who were deployed with the CRPF throughout, which position exists even today.

3. The appellant and respondent No.1 ultimately agreed for a decree of divorce by mutual consent and filed a petition under Section 13B of the Hindu Marriage Act, 1955. The first motion was filed in June, 2016 and after the expiry of the statutory period of six (6) months, the second motion was passed and a decree of divorce was granted on 9.12.2016.

4. The two relevant terms of the decree of divorce for the purposes of this present appeal are extracted as under:

“5) That, petitioner No.1 and 2 are at liberty to marry with any other person of their choice. In future petitioner No.1 has no any right of husband over petitioner No.2, so also petitioner No.2 has lost right as wife over petitioner No.1 today.

6) That, petitioner No.1 and 2 both are agree to custody of both the children’s residing with petitioner No.1. Petitioner No.1 will provide education, medicines, and marriage of Aarokya Kumar s/o Amit Kumar. Petitioner No.2 will provide education, medicines and marriage of Riya Kumar d/o Amit Kumar.”

5. A perusal of the aforesaid shows that para 5 was a natural corollary to the decree of divorce, i.e., that either parties could re-marry. Clause 6 provides for an agreement inter se the appellant and respondent No.1 qua the issue of custody of both the children, which was agreed to be with the appellant. However, possibly in view of their similar financial strength, it was agreed that the appellant would provide for education, medicines and marriage of the son while respondent No.1 would do the likewise for the daughter.

6. The parties at the relevant time were posted in Nanded and, thus, initially the arrangement for custody worked out fine. The issue, however, arose once the appellant was transferred out of Nanded. The appellant was transferred to Jammu, which apparently necessitated him to make arrangements for admission of respondent Nos.2 & 3 to a boarding school in Pune, while he assessed the possibility of bringing the children to live with him in Jammu. The undisputed fact is that at no point of time did respondent No.1 make any financial contributions towards her obligations, in terms of the decree of divorce by mutual consent. The appellant sent a legal notice dated 28.3.2017 to respondent No.1 pointing out this fact and demanding the payment of unpaid amounts, apart from the amount required for securing admission and meeting the living expenses of the daughter in the boarding school at Pune. It is this demand which seems to have triggered off the present dispute.

7. Respondent No.1 sent a reply to the aforesaid notice through her counsel on 15.4.2017. The said reply raised the issue that the consent decree was not acceptable to her, and hence her counsel had advised her to seek a modification of the terms & conditions of the decree regarding the custody of the children. It was also alleged that the transfer of respondent Nos.2 & 3 to the boarding school was a unilateral act of the appellant and that the expenses quoted were exorbitant.

8. Respondent No.1 filed an application dated 31.5.2017 under Section 6 of the Hindu Minority and Guardianship Act, 1956, seeking custody of her minor children. In the application, it is alleged that respondent No.1 was mentally disturbed regarding the future of respondent Nos.2 & 3, who are of a tender age, and that at the time of the divorce, the appellant forced and coerced the applicant “to dance on his tunes though not acceptable to the applicant.” It is further pl