1997 JTR(SC) 1250
1998 1 AllCJ 124 ; 1997 31 AllLR 418 ; 1998 1 APLJ 1 ; 1998 1 BLJR 147 ; 1997 4 CLT(SC) 33 ; 1997 4 CurCC(SC) 12 ; 1997 2 DMC 483 ; 1997 DNJ 385 ; 1997 8 JT 160 ; 1997 4 RCR(Civ) 204 ; 1997 6 Scale 167 ; 1997 7 SCC 565 ; 1997 KHC 3647 ; 1997 8 Supreme 362
1997(8) Supreme 362
SUPREME COURT OF INDIA
Dr. A.S. Anand & K. Venkataswami, JJ.
Smt. Shashi Garg -Petitioner
versus
Arun Garg -Respondent
Transfer Petition (C) No. 687 of 1996
Decided on 18.9.1997
Counsel for the Parties :
For the Petitioner : Ms. Arun Mathur, A. Mariarputham, Mrs. Urmila Narang, Advocates with for M/s. Arputham, Aruna & Company, Advocates.
For the Respondent : Sushil Kumar Jain, Advocate.
Act
Referred
:CIVIL PROCEDURE CODE : S.25
HINDU MARRIAGE ACT : S.13(b)
(A) The transfer of the matrimonial cause from the District Court, Delhi to the competent forum at Rewari, Haryana was effected under Section 25 of the Code of Civil Procedure, 1908, exercising inherent powers to ensure the adjudication of the matter by the court of appropriate jurisdiction. The substantive relief sought was the dissolution of the marriage under Section 13(b) of the Hindu Marriage Act, 1955, which was subsequently pursued and decreed under Section 13-B of the Act upon the mutual consent of the parties, with the court ensuring that the statutory safeguards for a minor daughter born out of wedlock were preserved in the agreement.
(B) The key legal principles affirmed are that a suit for divorce by mutual consent under Section 13-B is subject to the fulfillment of statutory conditions, the court retains the discretion to ensure the protection of minor children, and an out-of-court settlement can form the basis of a decree if it satisfies the requirements of justice and does not prejudice the interests of any party.
Facts of the case:
A matrimonial dispute was initiated by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955. A transfer petition was filed under Section 25 of the Code of Civil Procedure to move the case to the appropriate competent court, which was granted. The parties subsequently settled the dispute through a memorandum of agreement, acknowledging the emotional and practical breakdown of the marriage, and sought the court's decree on the terms thereof, including provisions for a minor daughter.
Findings of Court:
The court reviewed the agreement and found that the statutory requirements for a decree of divorce by mutual consent under Section 13-B were satisfied. It observed that the parties had reached an irretrievable impasse and that the agreement protected the interests of the minor daughter, including safeguarding her marriage until she attained the legal age. It also directed the petitioner to withdraw the unrelated Section 125 Cr.P.C. petition.
Issues:
Whether the matrimonial cause should be transferred to the competent forum; whether the marriage had irretrievably broken down to the extent of mutual consent; whether the terms of the agreement were fair and protected the interests of the minor child; and whether a decree of divorce could be granted under Section 13-B.
Ratio Decidendi:
The court established that the transfer was legally justified under Order 21 Rule 11 of the Code of Civil Procedure, and upon verifying that the matrimonial bond had completely dissolved and the agreement was just and protected the minors interests, it exercised its powers to dispose of the matter by granting a decree of divorce by mutual consent in accordance with the agreement.
Result:
The transfer petition was allowed, the matrimonial case was disposed of by decreeing divorce by mutual consent in terms of the settlement agreement, and the minor daughters interests were secured as per the courts directions.
(A) The transfer of the matrimonial cause from the District Court, Delhi to the competent forum at Rewari, Haryana was effected under Section 25 of the Code of Civil Procedure, 1908, exercising inherent powers to ensure the adjudication of the matter by the court of appropriate jurisdiction. The substantive relief sought was the dissolution of the marriage under Section 13(b) of the Hindu Marriage Act, 1955, which was subsequently pursued and decreed under Section 13-B of the Act upon the mutual consent of the parties, with the court ensuring that the statutory safeguards for a minor daughter born out of wedlock were preserved in the agreement.
(B) The key legal principles affirmed are that a suit for divorce by mutual consent under Section 13-B is subject to the fulfillment of statutory conditions, the court retains the discretion to ensure the protection of minor children, and an out-of-court settlement can form the basis of a decree if it satisfies the requirements of justice and does not prejudice the interests of any party.
Facts of the case:
A matrimonial dispute was initiated by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955. A transfer petition was filed under Section 25 of the Code of Civil Procedure to move the case to the appropriate competent court, which was granted. The parties subsequently settled the dispute through a memorandum of agreement, acknowledging the emotional and practical breakdown of the marriage, and sought the court's decree on the terms thereof, including provisions for a minor daughter.
Findings of Court:
The court reviewed the agreement and found that the statutory requirements for a decree of divorce by mutual consent under Section 13-B were satisfied. It observed that the parties had reached an irretrievable impasse and that the agreement protected the interests of the minor daughter, including safeguarding her marriage until she attained the legal age. It also directed the petitioner to withdraw the unrelated Section 125 Cr.P.C. petition.
Issues:
Whether the matrimonial cause should be transferred to the competent forum; whether the marriage had irretrievably broken down to the extent of mutual consent; whether the terms of the agreement were fair and protected the interests of the minor child; and whether a decree of divorce could be granted under Section 13-B.
Ratio Decidendi:
The court established that the transfer was legally justified under Order 21 Rule 11 of the Code of Civil Procedure, and upon verifying that the matrimonial bond had completely dissolved and the agreement was just and protected the minors interests, it exercised its powers to dispose of the matter by granting a decree of divorce by mutual consent in accordance with the agreement.
Result:
The transfer petition was allowed, the matrimonial case was disposed of by decreeing divorce by mutual consent in terms of the settlement agreement, and the minor daughters interests were secured as per the courts directions.
ORDER
K. Venkataswami, J.-H.M.A. Case No. 221/96 pending before District Judge, Delhi is transferred to the file of this Court.
2. This Transfer Petition was filed under Section 25 of the Code of Civil Procedure with a prayer to order transfer of H.M.A. Case No. 221/96 pending before the District Judge, Delhi between the parties to the court of competent jurisdiction at Rewari, Haryana. The respondent-husband has filed the said H.M.A. Case No. 221/96 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter called the Act) for the dissolution of the Marriage between the parties. This Petition was filed some time in February, 1996 by the respondent-husband.
3. Notice was ordered in the Transfer Petition and the respondent has entered appearance through his counsel.
4. We are not giving the details of the dispute between the parties in view of the subsequent events pending this Transfer Petition.
5. When this Transfer Petition came up for hearing, the parties desired to settle the dispute outside the Court and to file a memorandum of agreement in this Court. Accordingly, an agreement signed by the parties has been filed which is at page 59 of the paper book. The parties were also present on 15.9.97 when the matter was heard. As the parties desired to settle the dispute by filing the memorandum of agreement in this Court, it has become necessary to transfer the H.M.A. Case No. 221/96 pending on the file of the District Judge, Delhi to this Court and dispose of the same in the light of the agreement filed by the parties.
6. We have gone through the terms of the agreement. We have also noted that one minor daughter, by name Arushi Garg, born out of the wedlock is there and her interest has been protected in the terms of the agreement. After going through the pleadings filed both before the District Judge, Delhi and here, we are satisfied that the parties have reached to a point of no return. Therefore, there is no purpose of persuading them to live together under matrimonial roof.
In Clause 2 of the agreement, the parties have stated as follows :-
"2. That party No. 1 and 2 jointly pray before this Hon ble Court that their marriage be dissolved which is dead emotionally and practically between the parties by mutual consent under the directions of this Hon ble Court."
7. The requirements of Section 13-B of the Act have been satisfied and there is no impediment in granting the decree for divorce by mutual consent by altering the relief in H.M.A. Case No. 221/96, as one available under Section 13-B of the Act with a view to do complete justice between the parties and avoid unnecessary further litigation. We are also satisfied that the interest of the minor daughter has been safeguarded. Though clause 6(2) of the agreement enables the withdrawal of Rs.1,00,000/- at the time of the minor daughter attaining majority or at the time of her marriage, whichever is earlier, we make it clear that the marriage cannot be legally performed before the minor daughter reaches the statutorily fixed marriageable age.
8. Accordingly, there will be a decree for divorce by mutual consent in terms of the agreement entered into between the parties on 11th Day of September, 1997. The petitioner shall withdraw the petition filed by her under Section 125 Cr.P.C. before the Judicial Magistrate, Rewari. The parties will strictly comply with/adhere to the terms of the compromise deed which is taken on record and which shall form part of the decree. Transfer Petition and H.M.A. Case No. 221/96 transferred to this Court are disposed of. No costs.
Transfer petition and HMA Case disposed of.
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