Naveen Aggarwal & Anr. v. Nemo

date when the original petition was filed on 3.11.2006. Similarly, statements of Sunil Chaudhary, father of Shilpi Aggarwal and Sham Sunder, father of Naveen Aggarwal were also recorded on 8.8.2009 in the Lok Adalat to the effect that marriage of the petitioners is fully broken without any hope of its survival. Acting upon the compromise, a petition bearing CRM M-19627 of 2009 was filed for quashing of FIR No.13 dated 9.1.2007 registered under Sections 406/498-A IPC at Police Station Sector 39, Chandigarh which was allowed by this Court vide its order dated 13.10.2009. Thereafter, on

25.1.2010, a joint statement of Shilpi and Vijender Kumar, Special Power of Attorney of Naveen Aggarwal was recorded by the learned Additional District Judge, Chandigarh in which they had stated that “We endorse our previous statement dated 8.8.2009. We place on file Mark A, copy of order of Hon'ble High Court in Crl.Misc.No.19627 of 2009, vide which FIR No.13 dated 9.1.2007 registered under sections 406, 498-A IPC at P.S.Sector 39, Chandigarh has been quashed vide order dated 13.10.2009. Compromise Ex.C-1 has also been approved by Hon'ble High Court in the above said order and Rs.5.00 lacs has already been paid to petitioner Shilpi by way of Bank draft. Statutory period of 6 months has elapsed. We admit the contents of compromise Ex.C-1. Petitioner Shilpi gives her consent to dissolve the marriage.” It is pertinent to mention here that Clause 6 of the compromise provides that “both the parties undertake to get the divorce CR No.3515 of 2010 -3- petition already pending in Court of Sh.R.S.Attri, ADJ, Chandigarh for

25.7.2009, converted into that of under Section 13-B of HMA and to get it decided with mutual consent.” Despite the joint statement having been suffered by Shilpi (petitioner No.2) and Naveen Aggarwal (petitioner No.1) through his Special Power of Attorney, the divorce petition filed under Section 13-B of the Act was dismissed by the Court of Additional District Judge, Chandigarh on 25.2.2010 on the ground that Special Power of Attorney executed by Naveen Aggarwal in favour of Vijender Kumar does not provide for dissolution of marriage, rather it provides that “And whereas I want to contest the case filed against me as I don't want to get our marriage dissolved” and also on the ground that statement of Naveen (petitioner No.1) has not been recorded consenting the dissolution of marriage. The petitioners were taken aback with the order, filed a joint application for recalling of order dated 25.2.2010 with a prayer that the statement of both the parties be recorded and their marriage be dissolved as per compromise. Undisputedly, Naveen Aggarwal (petitioner No.1) appeared before the Court below on 29.3.2010 and got recorded his statement, which reads as under : “Earlier I had executed a Special Power of Attorney in favour of my brother in law Sh.Vijender giving authority to compromise the matrimonial dispute with my wife Shilpi Aggarwal on my behalf on 20.7.2008. The said power of attorney has not been revoked till date and is existing till date. Earlier I could not come before this Hon'ble Court in the year 2010 as I was not granted leave by my employer. I gave my consent to divorce mutually and the said consent is still continuing. The matter has been compromised totally in total on the CR No.3515 of 2010 -4- basis of compromise already executed, the FIR has already been quashed by the Hon'ble High Court and the agreed amount has already been paid. Nothing is payable or due to be paid by me. Said compromise was affected on my behalf by my attorney as per my instruction. I admit compromise dated

16.7.2009. I have seen the same compromise in HMA No.506 dated 3.11.2006 which is already given Ex.C-1 in that file. However, I had not given any authority to my brother in law to decide about the custody, future welfare of my child. The child currently is in custody of Shilpi Aggarwal. I reserve my right to seek the custody right through legal proceedings. However, in the meantime I would like to keep the meeting and visitation right of the child whenever I visit India. Shilpi Aggarwal shall have no objection allowing me to meet my child calling him on the telephone and also if she has to change her place she will keep me inform of her new address and telephone so that I can keep in touch with my son and see his growth and development.” On the same day, statement of Shilpi Aggarwal (petitioner No.2) was also recorded, which reads as under: “I have heard the statement given today by Sh.Naveen Aggarwal. I admit the compromise deed Ex.C1 and I shall keep the child with me as mentioned in Ex.C1. I agree that Naveen Aggarwal shall have meeting and visiting right as stated by him above. I have received the amount agreed in full and final and nothing is due as mentioned in Ex.C1. The alimony received is for myself as well as for my son. As mentioned in clause No.4 and 10 of Ex.C1, the custody of child remain with me.” The learned Court below, however, dismissed the application on the ground that order dated 25.2.2010 cannot be recalled as it would tantamount to review and in that case, certain parameters of the Statute have to be fulfilled. It was observed that the Court can review its order only if it CR No.3515 of 2010 -5- discovers new and important matter or evidence which could not be produced by the parties at the time when decree was passed, but in the present case, there were no such circumstances, therefore, application for recalling of order dated 25.2.2010 was dismissed vide order dated 7.4.2010. Aggrieved against the aforesaid orders dated 25.2.2010 and 7.4.2010, both the petitioners filed CR No.3516 of 2010 on 2.6.2010 challenging the order dated 25.2.2010 and CR No.3515 of 2010 filed on 2.6.2010 challenging the order dated 7.4.2010. The aforesaid facts, however, have been extracted from CR No.3515 of 2010. Learned counsel for the petitioners has vehemently argued that while passing the order dated 25.2.2010, the learned Court below has erred in not appreciating that in the Special Power of Attorney, specific power was given by petitioner No.1 to Vijender Kumar son of Om Parkash “to get the petition converted into that of Section 13-B of the Hindu Marriage Act.” It is submitted that learned Court below had only read one part of the Special Power of Attorney without looking into this aspect of the matter. He further submits that in any case in terms of the statement of Naveen Aggarwal (petitioner No.1) dated 29.3.2010, there should not be any doubt in the mind of the Court about the intention of the parties to the lis much less petitioner No.1 in respect of granting divorce by mutual consent to petitioner No.2. He had categorically stated that “I gave my consent for divorce mutually and the said consent is still continuing.” He also admitted the compromise dated 16.7.2009. It is also submitted that the Court should not lean towards technicalities of law when the parties to the lis are ready to bury the hatchet. It is also submitted that the Court had the power to review and recall its order not only on discovery of some mistake or error apparent CR No.3515 of 2010 -6- on the face of record but also for any other sufficient reason. After hearing the learned counsel for the petitioners and keeping in view the facts and circumstances in totality, I am of the view that order dated 7.4.2010 deserves to be set aside because both the petitioners have been throughout abiding by compromise dated 16.7.2009 on the basis of which FIR registered at the instance of petitioner No.2 has already been quashed by this Court and it has been provided in the compromise that both the parties would convert the divorce petition pending in the Court into one under Section 13-B for the purpose of obtaining divorce by mutual consent, pursuant to which, statements have been made by petitioner No.1 and petitioner No.2 on 8.8.2009 which have been approved by their respective fathers on the same day, therefore, it was only because of word mentioned in the Special Power of Attorney by petitioner No.1 that he had not consented that marriage be dissolved, the order dated 25.2.2010 was passed, however, the said shortcoming has been removed by petitioner No.1, who has got his statement recorded on 29.3.2010 by not only admitting the compromise dated 16.7.2009 but also stating that he had given his consent of divorce mutually and that consent is still continuing. In nut shell, now the statements of the parties to the lis are on record, on the basis of which they want their marriage to be dissolved by mutual consent. In my view, these circumstances are sufficient reasons for the learned Court below to review or recall order dated 25.2.2010 and pass an appropriate order in accordance with law much less keeping in view the statements recorded by the petitioner on 29.3.2010. Hence, CR No.3515 of 2010 is allowed and order dated 7.4.2010 is set aside. Learned Court below is directed to recall the order dated 25.2.2010 and on the basis of statement already recorded on CR No.3515 of 2010 -7-

29.3.2010 by the petitioners pass an appropriate order dissolving their marriage by mutual consent in accordance with law. Insofar as CR No.3516 of 2010 is concerned, the same has not been pressed and as such, the same is hereby dismissed. The parties are directed to appear before the Court on

10.7.2010.

5.7.2010 Meenu (Rakesh Kumar Jain) Judge