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Hanish Kumar vs Renu Bala on 10 May, 2018

CR No.858 of 2016 (OM) {1}

IN THE HIGH COURT OF PUNJAB HARYANA
AT CHANDIGARH

CR No.858 of 2016 (OM)
Date of decision:10.05.2018

Hanish Kumar … Petitioner
Vs.

Renu Bala … Respondent

CORAM: HON’BLE MR. JUSTICE AMIT RAWAL

Present:- Mr. Ritesh Aggarwal, Advocate
for the petitioner.

Mr. Surinder Garg, Advocate
for the respondent.

AMIT RAWAL J.

The present revision petition is directed against the impugned

order dated 04.08.2015 (Annexure P-13) passed by the District Judge,

Faridkot, allowing the application moved by the respondent seeking

recalling/review of the order dated 14.11.2011, whereby the divorce petition

filed under Section 13-B of Hindu Marriage Act,1955 (hereinafter referred

to as “1955 Act”) by the petitioner in the second motion had been allowed.

Mr. Ritesh Aggarwal, learned counsel for the petitioner

submitted that both the parties filed petition under Section 13-B of 1955

Act, on 12.05.2011. Both the parties suffered joint statement on 13.05.2011

before the Court below. The marriage between the parties according to

Hindu Rites was performed on 5.9.2004. Out of the wedlock, two sons

namely Gaurav Gupta now aged 5 years and Saurav Gupta now aged 3 years

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CR No.858 of 2016 (OM) {2}

were born and thereafter, the matter was adjourned for six months. After six

months, the parties also suffered another joint statement reiterating the

previous one. On the basis of aforementioned statement, District Judge, vide

judgment and decree dated 14.11.2011 granted the divorce.

Respondent/wife-Renu Bala, submitted an application dated 03.01.2012

(Annexure P-5) under Section 114 read with Section 151 of CPC for

reviewing/setting aside of the judgment and decree dated 14.11.2011 and

for dismissing of the petition under Section13-B of 1955 Act on the premise

that parties lived together as husband and wife upto 6.12.2011. Husband had

left wife to her paternal home and both children were kept with him. When

he was contacted on telephone on 10.12.2011, then he declared that he had

obtained the decree of divorce and was not willing to keep and maintain the

respondent/wife. On 12.12.2011, applicant applied for certified copies of

decree, aforementioned. The respondent-wife alongwith her father and

mother went to Bathinda on 15.12.2011 to the house of petitioner-husband,

petitioner returned the gold ornaments weighing 12 tolas to her and got the

signatures of wife on the blank stamp papers alongwith signatures of her

father. In fact, the husband influenced the wife that decree of divorce was

required to obtain a passport showing to be a divorcee person so that he

could migrate to Canada and he assured that after settlement in Canada,

would again re-marry with her and in this way, fraud had been played upon

her, necessitating the wife to move application, aforementioned.

The application was contested by the husband but the trial

Court allowed the application, vide impugned order. The impugned order is

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not sustainable, for, the Court below has not appreciated the fact that

respondent-wife did not place on record any ingredients of fraud having

been played upon her, thus, there is miscarriage of justice. The wife suffered

a statement on account of her own. It is not a case that the Court had

exempted the period of 6 months and granted the divorce decree and listed

the matter after six months . Even second motion, wife also suffered a

statement. Had the husband influenced her, she could refuse to suffer

second statement. Filing of review application is nothing but an arm

twisting tactics and act of greed. The compromise arrived at between the

parties was in the presence of the parties. It was read out in the presence of

the parties. The petitioner never stated that wife was demanding Rs. 5 lacs

from him but both husband and wife in a statement repeatedly stated that it

was wrong that wife demanded Rs.5 lacs from the husband.

Per contra, Mr.Surinder Garg, learned counsel for the

respondent-wife submitted that in support of the review application, wife

examined herself as AW1, Prem Kumar Bansal as AW2, Sohan Singh as

AW3, Amandeep Singh as AW4 and photocopies of entries in school

register Ex.AW4/C and Ex.AW4/D and Harbhajan Singh appeared as AW5

who proved on record copies of ration card Ex.AW5/B and Ex.AW5/C,

AW6 Reeta proved the photocopies of indoor register Ex.AW6/B,

Ex.AW6/C, Ex.AW6/D and Ex.AW6/E, AW7 Raj Kumar. On the other

hand, husband examined himself as RW1 and RW2- Jangir Singh, who

proved on record compromise Ex.R1 and endorsements Ex.RW2/B to

Ex.RW2/E, entry in the register for sale of stamp paper Ex.RW2/F and RW3

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Hanish Kumar, Advocate. He, thus, urged this Court for dismissal of the

petition by affirming the order under challenge.

I have heard the learned counsel for the parties, appraised the

paper book and of the view that there is force and merit in the submissions

of Mr. Ritesh Aggarwal, for, the filing of divorce petition dated 12.05.2011

(Annexure P-1), joint statement dated 13.5.2011 (first motion), Annexure P-

2 and second statement dated 13.05.2011 and passing of judgment and

decree dated 14.11.2011, are not in controversy. The only point to be seen

by this Court is whether any cause of action accrued to the respondent-wife

for moving an application under Section114 of CPC. for recalling of the

judgment and decree dated 14.11.2011. On plain and simple reading of

Section 114 of CPC which is reproduced herein below:-

“Section 114.Review.-Subject as aforesaid, any person

considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by

this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by

this Code’ or

(c) by a decision on a reference from a Court of Small Causes,

may apply for a review of judgment to the Court which passed

the decree or made the order, and the Court may make such

order thereon as it thinks fit”

it is clear that review can be sought when there is error apparent on record.

Assuming instead of respondent-wife, somebody else had impersonated and

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suffered a statement, in such circumstances, it would have been apparent

fraud which vitiates everything. Definitely in such situation, a cause of

action would have arisen to the respondent-wife for moving the application.

As per the contents of the application (Annexure P-5), none of the grounds

have been able to make out a case falling within the ambit of Section 114 of

CPC. For the first time, a plea was taken that the Court at Faridkot had no

jurisdiction, for, voter card and ration card of petitioner are of Bathinda. The

trial Court while recalling the order did not notice the contents/averments

made in para 10 of divorce petition jointly filed by the husband and wife.

For the sake of brevity, para 10 reads as under:-

“10. That the petitioners lastly resided and cohabited

together as husband and wife as Faridkot, within the

jurisdiction of this Hon’ble Court, hence this Hon’ble Court

has got the jurisdiction to hear and try the present petition.”

The aforementioned statement was verified and both the parties

made the statement. The statement was made before the concerned District

Judge, Faridkot and endorsed by the counsel. All these factors, if read in

cumulative lead to irresistible conclusion that it was an act of greed or

browbeating the husband, much less wriggling out of the statement suffered

voluntarily for divorce.

In my view, the respondent-wife has not been able to bring the

case within parameters of fraud and coercion etc. Had it been so, evidence

to that effect would have been led but in the absence of any direct or cogent

evidence, voter card and ration card should not have been taken into

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consideration for recalling the order which cannot be a ground for recalling

of the order as they do not fall within the expression “mis-representation or

fraud”, for, wife was afraid, if there was some truthfulness in the grounds of

review, respondent-wife would not have stopped here, she would have

definitely initiated the appropriate criminal proceedings, for, she was afraid

that she may not be hauled up under Section 182 Cr.P.C.

As an upshot of my findings, order under challenge recalling of

judgment and decree dated 14.11.2011, whereby, divorce has been granted

is wholly fallacious, perverse, repugnant and not sustainable in the eyes of

law and thus, same is set aside.

Resultantly, the revision petition stands allowed.

(AMIT RAWAL)
JUDGE
May 10, 2018
savita

Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No

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