Saturday, 4 May 2019

Whether wife can give up right to daughter to get maintenance?

Before we part with, we must also express our reservation
insofar as Term No.6 is concerned, which was incorporated in the
order on 08.11.2017 by the Principal Judge, Family Court,
Aurangabad. It was certainly open to the wife to give up any claim
so far as maintenance or permanent alimony or stridhan but she
could not have given up the rights which vest in the daughter
insofar as maintenance and other issues are concerned.

We, therefore, exercising our powers under Article 142 of the
Constitution of India, set-aside Clause (6) of the Consent Terms.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4031-4032 OF 2019

GANESH  Vs  SUDHIRKUMAR SHRIVASTAVA

Dated:APRIL 22, 2019


Leave granted.
Heard Mr. Santosh Paul, learned senior counsel who assisted
this Court as Amicus Curiae on behalf of the appellant-husband and
Ms. Rukmini Bobde, learned counsel who assisted this Court as
Amicus Curiae on behalf of the respondent-wife.
In the present matter, the parties had entered into consent
terms. The Principal Judge, Family Court, Aurangabad took the
Consent Terms on record in Petition No.A-192/2017 and passed Order
dated 08.11.2017 in terms thereof. The text of the Order passed by
the Principal Judge, Family Court, Aurangabad reads as under:
“Petition was filed by the applicant no.1 for divorce,
according to Section 13(1)(ia)(ib) in the Hindu Marriage
Act, 1955, against the applicant no.2 in the Court.
While the case was pending, the two parties were sent to
the counselor. According to the Counsellor’s Report,
Exh. No.11, both the parties decided to take divorce
themselves and the counselor after independence and with
mutual consent after the efforts of the Counsellor
failed.

Marriage of applicants 1 and 2 on 09.12.2019 Radhakrishna
Mangal Karya, CIDCO, Aurangabad was conducted as per
Hindu Dharma and Customary. From this marriage, the girl
namely Vedika was born on 01.04.2014. The girl is
currently under the custody of applicant no.1.
Applicants 1 and 2 are separated from date 01.06.2014 due
to mutual differences of opinion and nature. After the
efforts of the Counsellor failed, they have voluntarily
converted the original petition in accordance with
Section 13-B of the Hindu Marriage Act.
After the marriage Counsellor attempts, there is no
possibility of co-habitation but the applicant is ready
to take divorce according to the terms and condition made
in Exh. No.12 of 1 and 2.
Judgment
1. Amendment application is approved.
2. Marriage completed on date 09.12.2012 of applicants
no.1 and 2 is dismissed by Decree in accordance with
Section 13-B of the Hindu Marriage Act, 1955.
3. Under the terms and conditions of the Exh. No.12,
the terms and conditions of this judgment should be
considered as part of this judgment.
4. The parties from both sides should spend their
money.
5. From this make the Decree.
CONSENT SHEET EXH. NO.12
1) The marriage of the applicant and the non-applicant
has been deone on the basis of Hindu theology in
Aurangabad on 09.12.2012.
2) The applicant and the non-taxman are separated from
each other on 01.06.2004.
3) The applicant and the non-applicant have a daughter
Vedika (birth date 01.04.2014) from this marriage
for 3 years 3 months.
4) Currently the girl Vedika is in the custody with
applicant i.e. the mother and will remain in the
future with applicant, it is accepted to nonapplicant.
3
5) The applicant has released the right of, monthly
maintenance, permanent alimony and stridhan on nonapplicant.
6) The applicant has released the right of monthly
maintenance to the daughter with the non-applicant.
The applicant has fully accepted responsibility for
the child’s livelihood, education and health.
7) Both of them have agreed that the non-applicant will
not meet his daughter which is in the custody of the
applicant in the future, and will not make any civil
or criminal claim in any court to get custody and
visitation right of the daughter.
8) The applicant shall not show any right in any
property or movable property, will never claim in
any civil or criminal nature in any court, to get
home from the non-applicant in future.
9) Both of them will no longer have to pay for each
other in the form of money or things in the future.
10) The applicant has lodged a complaint against the
non-applicant and his two relatives at Taluka Pathri
Dist. Parbhani. She will take the complaint back.
11) The non-applicant had filed the Registered Darkhast
bearing no.06/2017 in this Hon’ble Court. The said
petition he is withdrawing herewith.
12) As mentioned above there is no matter pending in any
Hon’ble Court between the parties.
13) Both of them will not claim and will not file any
petition in the cause due to past events.
Abovementioned consent is agreed to applicant and
non-applicant and hence this consent terms is
converted as per Section 13(b) of Hindu Marriage
Act, 1955 for divorce.”
The appellant-husband thereafter filed Contempt Petition
No.304 of 2018 submitting inter alia that respondent nos.1 to 4 had
not followed certain directions issued by this Court in Arnesh
Kumar v. State of Bihar, [2014 Crl. L.J. (SC) 3707 : 2014 AIR SCW
3930) and that the respondent-wife despite having given an
undertaking in terms of para 10 of the consent terms, had not
withdrawn the proceedings.

The contempt petition having been dismissed, the appeal
preferred therefrom was also dismissed by the High Court.
Without going into the question whether the appeal was
maintainable or not, in our view, appropriate course to be adopted
in the matter is to effectuate the understanding as culled out in
para no.10 of the Consent Terms. If the parties had arrived at a
settlement and decided to withdraw the cases filed by each of the
parties against the other, the compromise ought to be effectuated
in complete sense.
The law on the point is well-settled by the decision of this
Court in Gian Singh v. State of Punjab & Another, (2012) 10 SCC
303. Leaving aside the technicalities, we therefore deem it
appropriate to quash the proceedings which were initiated at the
instance of the respondent-wife i.e. FIR No.148 of 2015 dated
04.09.2015 registered with Police Station Pathri District Parbhani.
Further proceedings in said FIR now stand quashed.
Before we part with, we must also express our reservation
insofar as Term No.6 is concerned, which was incorporated in the
order on 08.11.2017 by the Principal Judge, Family Court,
Aurangabad. It was certainly open to the wife to give up any claim
so far as maintenance or permanent alimony or stridhan but she
could not have given up the rights which vest in the daughter
insofar as maintenance and other issues are concerned.

We, therefore, exercising our powers under Article 142 of the
Constitution of India, set-aside Clause (6) of the Consent Terms.
Rest of the order stands unaltered and ought to be given effect to.
With the aforesaid view, the appeals stand allowed to the
aforesaid extent.
We express our sincere gratitude to Mr. Santosh Paul, Senior
Advocate and Ms. Rukmini Bobde, Advocate for their able assistance
as Amicus Curiae in the matter.
.................................J.
[UDAY UMESH LALIT]
.................................J.
[INDU MALHOTRA]
NEW DELHI;
APRIL 22, 2019

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