Sukhjinder Kaur v. Tejinder Singh

FAO-1388-2024 -:1:- INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAo AToCHANDIGARH

(107) ooooooooooooooooooooooooooooooooooooo FAO-1388-2024 oooooo o DateoofoDecision:-13.01.2025 SUKHJIND !oKAU!o "oA##e$$ant %e&s's ( JIND !oSIN)Ho ***o!es#on+ent -*- CORAM: HON'B EoMR!.oJU!TICEoo I!AoGI HON'B EoMR.oJU!TICEooA O"oJAIN ,&esent:- -&*o!a.es/oti/ate.a1oA+2ocateo fo&ot/eoa##e$$ant*oo 3333 oALOKoJAINooJo* 1* The instant appeal has been preferred by the wife-Sukhjinder Kaur against the judgment and decree dated 18.10.2016, passed by learned Additional District Judge, Ludhiana, whereby the petition filed by her and the respondent/husband-Tejinder Singh under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') was allowed and also against the order dated 24.01.2024 vide which the application filed by the appellant-wife for the review/recall of the judgment and decree dated

18.10.2016 has been dismissed.

¶2The uncontroverted facts are that appellant was married to the respondent on 20.05.2012, as per Sikh rites and rituals. One male child was born of the said wedlock on 09.08.2014 who is living with the wife. The FAO-1388-2024 -:2:- appellant-wife has done BDS (Bachelor in Dental Science) and respondent husband has done diploma in Hospitality Management.

¶3In the divorce petition it was pleaded that wife is an ambitious woman and wanted to pursue her profession and wanted to establish career as a Dental surgeon but differences arose between the couple soon after their marriage when appellant-wife came to know that respondent-husband is least interested in pursuing his professional career in India and only wanted to immigrate to Canada whereas the appellant wanted to establish her career in India. As per appellant-wife the respondent started pressurizing her to qualify the English Proficiency test while appellant-wife tried to convince him to settle in India by opening her own clinic, wherein the husband can look after the administrative and managerial side, however failed to create any positive impact on the respondent-husband, as a result of which their marriage ran into rough weather and both decided to part their ways.

¶4After a wearisome period of endless disputes and wrangling, they mutually agreed to dissolve their marriage by filing a petition on

11.03.2016 under Section 13-B of the Act before the learned Additional District Judge, Ludhiana. On 14.03.2016, joint statement of parties was recorded to the said effect. Second motion statements of both the parties were recorded on 18.10.2016 i.e. after the lapse of statutory period of six months from recording of their first motion statements. In the second motion statements it was reiterated by the parties that due to differences that had developed between them, after their marriage, it was not possible for them to live together and due to differences in regard to career and future prospect etc. they had withdrawn from the society of each other and have been living separately since 10.01.2015. It was also stated by both the parties that all FAO-1388-2024 -:3:- their disputes regarding maintenance, custody of minor child, permanent alimony etc. stood settled between them.

¶5It was agreed between the parties that the wife shall not claim any maintenance allowance or anything from the husband in future under any law. The minor child was to remain in the custody of the wife and husband would not claim his custody in future. After the Court was satisfied that their statements were free from coercion or fear, marriage of the parties was dissolved by a decree of divorce by mutual consent under Section 13-B of the Act vide judgment and decree dated 18.10.2016.

¶6On 14.12.2016, appellant-wife filed an application for review/recall of the impugned judgment and decree dated 18.10.2016, by alleging the same to be the result of fraud played by the respondent-husband which came to be dismissed on 24.01.2024.

¶7Appellant-wife argued that she had given consent under pressure of respondent and his family. It was stated that when appellant-wife had failed to qualify the English Proficiency Test then the respondent and his family pressurised the appellant-wife to dissolve their marriage by mutual consent so that he could marry an NRI or PR visa holder from Canada. It was further assured by the respondent and his family that the said subsequent marriage would be a "sham" and would be dissolved once the respondent obtained Canadian permanent residency and the respondent would remarry the appellant-afterward. The appellant at first instance refused to participate in such fraudulent acts or misrepresentation before the court and immigration authorities. However, despite her objections, the respondent and his family threatened to sever ties with the appellant, causing her to reluctantly comply with their demands. Therefore, under FAO-1388-2024 -:4:- compulsion to maintain harmony and save the bond, appellant under pressure filed petition under Section 13-B of the HMA. The appellant was shocked to learn that immediately after obtaining certified judgment and decree on 18.10.2016, the respondent and his parents expelled the appellant and her minor son from the matrimonial home, by stating that their marriage had been dissolved. Further, it was revealed to the appellant that it was a deceitful scheme as respondent intended to marry Mandeep Kaur, a nurse with Canadian permanent residency. Although the appellant moved complaints to the police but no action was taken. In the backdrop of these circumstances, it was stated that fraudulent nature of the decree is highlighted from the fact that the couple never separated prior to 05.11.2016, neither any written settlement was filed, nor terms for monetary payment or return of dowry articles were recorded, which clearly shows that the statements before the court was a sham.

¶8Heard learned counsel for the appellant and have carefully perused the record furnished in Court by learned counsel for appellant.

¶9It is a matter of record and cannot be disputed by the appellant that the marriage was dissolved under Section 13-B of the Act and decree of divorce was passed only after due procedure as envisaged under Section 13-B (2) of the Act had been followed. It would be appropriate to reproduce Section 13-B as under:- "13-B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they FAO-1388-2024 -:5:- have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

¶10A perusal of Section 13-B of the Act clearly indicates that during the mandatory six-month period between the first and second motion for mutual consent divorce, either party has the right to withdraw their consent. However, if both parties appear before the court after this period and reaffirm their intention to dissolve their marriage, the court must proceed in accordance with the law. While a decree under Section 13-B can be set aside in exceptional cases if it is demonstrated that they were obtained through fraudulent means or without following due process. However, the threshold for proving fraud is high, requiring substantial and compelling evidence. If the evidence and other material on record show no signs of coercion or undue influence, the court shall not recall or interfere with such decree.

¶11Stand taken by the appellant and pleas raised by her do not inspire confidence for the following reasons:- i. Firstly the appellant is an educated lady holding degree ofotiac/e$o&oofoDenta$oS'&4e&5o(0DS)*ooItoisonotoaocase 6/e&eos/eo6asoanoi$$ite&ateo6o7an1o/a2in4onoos'##o&too& 4'i+anceof&o7onea&oan+o+ea&*ooA+7itte+$5o&ea$osiste&oof t/eoa##e$$anto/e&se$foisoao8a65e&1o6/oo6o'$+onecessa&i$5 9eoa6a&eoofot/eo#&o2isionsoofo$a6*o-o&eoso1ot/eoa##e$$ant /asofai$e+otoo+e7onst&ateo6it/oan5oco4ento#&oofot/at FAO-1388-2024 -:6:- whatowereotheotermsoofosettlementowhichowereonot agreedouponooroadheredotoobyotheorespondent-husband. ii. Secondly,ostatementsoofopartiesodulyorecordedobeforeothe learnedoTrialoCourtowereotootheoeffectothatoappellantohas receivedotheoentireodowryoarticles, oIshtrioDhan oand compensation o from o the o respondent-husband o coupled withotheofactothatoperiodoofosixomonth'sotimeoi.e.ocooling offoperiodowasoalsoogivenotoodeliberateoandotakeoa considered o decision o before o recording o their o second statement. o Merely o pleading o fraud o is o not o enough. Appellantowasounableotoodemonstrateothatotheyowere residingoasohusband-&-wifeoevenoafterotheodecreeoof divorceowasopassedooromuch-lessoevenoafterotheodate

10.01.2015,owhichoisoallegedotoobeotheodateosinceobothoof themowereolivingoseparatelyoandorecordedoinodecree datedo18.10.2016. iii. Thirdlyotheopetitioneroisoestoppedobyoheroownoactoand conductoandocannotobeopermittedotooabuseotheoprocessoof lawoasothereoisonooconcealmentoofofactobyotheorespondent toowhichotheoappellantowouldodemonstrateothatofraudohas been o played. o Testimony o of o the o respondent-husband couldonotobeoshatteredoandothereoisonoootheroevidence whichocouldodemonstrateoanyofraud. iv. Lastlyodecreeoofodivorceobyomutualoconsentopassedoby theolearnedoTrialoCourtocan'tobeoannulledobyomere assertionoofoanyopartyolaterothatotheodecreeowasomeantoto beoaoshamoforofacilitatingopermanentoresidenceoinoa foreignocountry.

¶12It o is o to o be o noted o that o appellant o is o well-educated o and o a professional.oCertainlyotheoappellantowouldohaveogoneothroughotheopetitionoas welloasoaffidavitobeforeosigningotheopapersoandogivingoconsentoforodivorce, however,osheodidonotoraiseoanyoobjectionoorocomplainotooPresidingoOfficeroof FAO-1388-2024 -:7:- theoCourtowhileotheocourtowasoexaminingotheopartiesoinoaccordanceowith Sectiono13Bo(2)oofotheoHinduoMarriageoAct,o1955.oFurthermore,oappellant's claimoofobeingopressurizedoforogivingoconsentobyotheorespondentoandohis familyoisonotosupportedobyoanyoconcreteoevidence,oandotheofactothatosheodid notoobjectoduringocourtoproceedingsoweakensoheroargument.oRespondent's subsequent o remarriage,o althougho distressingo to otheo appellant,o does onot retroactivelyoinvalidateotheodivorce.oItoisounjustotooreopenoaomatterothatowas settledobyomutualoconsent,oespeciallyoafteroaosignificantolapseoofotime,oas doing o so owouldo unnecessarily o prolong olitigation oando affect oall o parties involved.oElementoofofraudobeingoplayedouponotheoappellantoasopleadedohas notobeenosubstantiatedobyoanyocogentoevidenceoonorecord.

¶13Gainfuloreferenceoinothisoregardocanobeomadeotoojudgmentoof Hon'bleotheoSupremeoCourtoin oHarjasoRaioMakhijao(D)oThr.Lrsovs PushparanioJaino&oAnoMANU/SC/0002/2017,otheorelevantoextractoofowhich isoreproducedoasounder: "21.oWeoagreeothatowhenothereoisoanoallegationoofofraudobyonon-disclosureoofonecessaryoandorelevantofactsooroconcealmentoof materialofacts,oitomustobeoinquiredointo.oItoisoonlyoafteroevidence isoledocoupledowithointentotoodeceiveothatoaoconclusionoofofraud couldobeoarrivedoat.oAomereoconcealmentooronon-disclosure withoutointentotoodeceiveooroaobaldoallegationoofofraudowithout proofoandointentotoodeceiveowouldonotorenderoaodecreeoobtained byoaopartyoasofraudulent.oTooconcludeoinoaoblanketomannerothat inoeveryocaseowhereorelevantofactsoareonotodisclosed,otheodecree obtainedowouldobeofraudulent,oisostretchingotheoprincipleotooa vanishingopoint."o FAO-1388-2024 -:8:-

¶14Moreover,oCourtoproceedingoshouldonotobeoconductedounderothe shadowoofoirreverenceoparticularlyowhenoaopartyoisoawareothatoaostatement madeoinotheoCourtoofolawoifofoundotoobeofalseowouldohaveoitsorepercussions. Theoappellantoappearsotoohaveoengagedoinosuchoconduct.ooSheocontendedothat herohusbandoassuredothatoafteropermanentosettlementoinoforeignocountryohe will o remarry o theo appellant o and o appellant o was o never ointerested o in o the fraudulentoactoofogivingofalseostatementooromisrepresentationotooCourt.ooSuch assertionomustobeorejectedoasoitoexistsosolelyoinotheorealmoofotheoappellant's imaginationoandocan'tobeopermittedotooundermineotheointegrityoofoaosolemn judicialoprocess,owhichoisointendedotoorenderoaodecreeoofodissolutionobasedoon lawfuloground.

¶15Therefore,ofindingonoomerit,omucholessoanyosubstantialoquestion ofolaw,oandocoupledowithotheofactothatothereoisonooinfirmityooroperversityoinothe impugnedoorderodatedo24.01.2024,opassedobyolearnedoFamilyoCourt,oappealois dismissedobeingodevoidoofoanyomerit. (ALOKoJAIN)oooooooooooooo (LISAoGILL)

13.01.2025 JUDGE oooooooooo oooooJUDGE GauravoSorot ooooooooooo ooooo ooooo ooooo Whetheroreasonedo/ospeaking? Yeso/oNo Whetheroreportable? Yeso/oNo