Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 4441

IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Sachdeva, Saurabh Banerjee, JJ.
Ashwani Choudhary – Appellant
Versus
Pratibha Singh – Respondent
MAT.APP.(F.C.) 206 of 2019 & CM APPL. 34284 of 2019
Decided On : 12-05-2023

Advocates appeared:
Ms. Anita Sahni, Mr. Mahendra Vikram Singh, Dr. Rennie Joyy and Mr. Rahul Maurya, Advocates with appellant in Person, for the Appellant.
Mr. Nishant Das, Advocate with respondent in person, for the Respondent.

The central legal point established in the judgment is the court's discretion to allow the amendment of a petition for divorce based on a settlement agreement between the parties.

Headnote:
Section 13 (1)(ia) - Hindu Marriage Act - The court allowed the appellant to amend the petition seeking divorce under Section 13 (1)(ia) of the Hindu Marriage Act to a petition under Section 13B (1) of the Act due to a settlement agreement between the parties.
Fact of the Case:

The appellant sought divorce under Section 13 (1)(ia) of the Hindu Marriage Act, which was initially dismissed. However, the parties settled their disputes and executed a settlement agreement.
Finding of the Court:

The court set aside the impugned order and restored the petition to its original number on the record of the Family Court. The petition was allowed to be amended to a petition under Section 13B (1) of the Act, and the parties were directed to file the amended petition before the Family Court.
Issues: The issues involved the dismissal of the appellant's petition for divorce under Section 13 (1)(ia) of the Hindu Marriage Act and the subsequent settlement agreement between the parties.
Ratio Decidendi: The court's decision was influenced by the settlement agreement between the parties, which led to the restoration of the petition and the allowance of its amendment to a petition under Section 13B (1) of the Act.
Final Decision: The appeal was disposed of with the direction for the filing of the amended petition before the Family Court, and the parties were granted waiver of the statutory period under Section 13B (2) of the Act.

JUDGMENT

Sanjeev Sachdeva, J. (Oral)--Appellant impugns order dated 06.05.2019, whereby the petition filed by the appellant seeking divorce under Section 13 (1)(ia) of the Hindu Marriage Act (hereinafter referred to as the `Act') has been dismissed.

2. With the intervention of the Court as well as with the intervention of respective counsel for the parties, the parties have settled their disputes and a settlement agreement dated 10.05.2023 has been executed. Certified true copy of the agreement dated 10.05.2023 has been filed alongwith an application seeking to place on record the settlement agreement. It is informed that application has been filed vide Diary No.833321 on 11.05.2023, which has been returned under objection by the Registry. Registry is directed to register the same despite the objection.

3. Parties are present in person and are also represented through counsel. Both the parties confirm that they have executed the settlement agreement dated 10.05.2023. Both the parties undertake that they shall abide by the terms and conditions of the settlement. Parties further undertake that they shall be approaching the concerned Court for dissolution of their marriage by mutual consent.

4. Original settlement agreement has been produced before us. We have perused the same and a certified true copy of the same has been filed, which is taken on record.

5. Appellant has agreed to transfer 50% of his share in flat No.191 (details of which are mentioned in the application) in favour of the respondent and Flat No.193B (details of which are mentioned in the application) in favour of the children, subject to his right of residence and right of resident of his parents upto his/their respective life time. Appellant further undertakes that he shall transfer the property in favour of the children and take out the term insurance before recording of the statement for the second motion. He further undertakes that since some formalities are required to be undertaken with the financial institutions qua flat No.191, he assures that the same shall be completed within a period of three months from today.

6. Respondent, who is present in person, undertakes that she shall not take steps to seek eviction of the appellant or his parents from Flat No.193B, which is to be transferred in favour of the children. Since transfer of property is being made in favour of the children subject to the right of residence of the appellant and his parents during their life time, the transferee children shall be bound by the same.

7. Both parties undertake that they shall abide by the terms and conditions of the settlement.

8. The undertakings are accepted. We have also perused the terms of settlement and find the same to be lawful.

9. In view of the settlement between the parties, the impugned order dated 06.05.2019 is set aside and petition is restored to its original number on the record of the Family Court.

10. In view of the above, the oral prayer of the parties is accepted and the petition filed by the appellant under section 13 (1) of the Act is allowed to be amended and is converted into a petition under Section 13B (1) of the Act on the records of the Family Court.

11. The amended petition duly signed and supported by respective affidavits of the parties is directed to be filed before the Family Court on 18.05.2023. Parties shall be personally present before the Family Court for recording of their respective statements under Section 13B (1) of the Act on the said date.

12. Parties further pray that in view of the fact that they are living separately since September, 2016 and been in litigation, the statutory period under section 13B (2) be waived.

13. On an application being filed, seeking waiver of the statutory period of six months, the Family Court shall take into account the fact that the parties have been living separately since 2016 and have been in litigation and resumption of cohabitation has not been possible and grant waiver of the sta

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