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Lalit Ahuja vs Shikha Malhotra on 29 May, 2018

CR No.5740 of 2015(OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CR No.5740 of 2015(OM)
Date of Decision: 29.05.2018

Lalit Ahuja
……Petitioner
Vs

Shikha Malhotra
…..Respondent

CORAM: HON’BLE MR. JUSTICE RAJ MOHAN SINGH

Present:Mr. Vaibhav Sehgal, Advocate
for the petitioner.

Mr. Neeraj Malhotra, Advocate
for the respondent.

****

RAJ MOHAN SINGH, J.

[1]. Petitioner has preferred this revision petition against the

order dated 14.08.2015 passed by Guardian Judge, Ludhiana,

whereby application filed by the petitioner for dismissal of the

petition was dismissed.

[2]. Brief facts of the case are that the petitioner was

married with the respondent on 26.02.2009 at Ludhiana

according to Hindu rites and ceremonies. Out of the wedlock, a

daughter namely Shreya Ahuja took birth on 16.01.2010. Parties

could not pull on their matrimonial ties. With the intervention of

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CR No.5740 of 2015(OM) 2

the respectables, both the sides entered into written

compromise on 13.05.2012. A joint petition under Section 13-B

of the Hindu Marriage Act was filed. District Judge, Jalandhar

vide judgment and decree dated 14.05.2013 was pleased to

grant divorce under Section 13-B of the Hindu Marriage Act. A

joint statement was made by the parties that the minor child

namely Shreya Ahuja who is in custody of the petitioner will

remain with him and respondent will be having no concern with

the minor whatsoever. Petitioner would be responsible for all the

education, maintenance, upbringing and marriage of the minor

Shreya Ahuja. All the claims regarding past, present and future

maintenance and permanent alimony have been paid to the

respondent. Joint statement of the parties before the District

Judge, Ludhiana on 14.05.2013 was to the following effect:-

“Our joint statement was recorded on
12.11.2012. We are Hindu by religion. Our marriage
was solemnized on 26.02.2009 at Ludhiana as per
Hindu rites and ceremonies. We lived together, but
soon we discovered that we are not made for each
other. From the wedlock, one female child namely
Shreya was born on 16.01.2010 who is living with the
petitioner No.2. The petitioner No.1 will not claim the
custody of the minor Shreya from the petitioner No.2, in
future. The petitioner No.1 has no concern with the
minor child from any corner whatsoever. On the other
hand, the petitioner No.2 is fully responsible for all the

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education, maintenance, upbringing and marriage of
the minor Shreya. All the claims regarding past, present
and future maintenance and permanent alimony of the
petitioner No.1 have been settled. The petitioner No.1
has received each and everything from the petitioner
No.2. Now, no dispute is left between us. The petitioner
No.1 will not claim any maintenance from the petitioner
No.2, in future. Some of the gold ornaments belonging
to the petitioner No.1 were lying with the petitioner
No.2. Similarly, some of the gold ornaments belonging
to the petitioner No.2 were lying with the petitioner
No.1. Now, as per settlement between us, we had
entrusted the gold ornaments with Mr. Sunil Kapoor
son of Sh. Subhash Kapoor, Mediator resident of Ram
Gali Madhopuri, Ludhiana, who is a common friend of
us. We have taken the gold ornaments from Sh. Sunil
Kapoor. The petitioner No.1 has already received all
her dowry articles and istridhan etc. from the petitioner
No.2. Now, nothing remains due towards each other.
On account of our contrasting nature, we could not live
together. Hence we have been living separately since
16.07.2011. We have failed to persuade ourselves to
live as husband and wife. We shall be bound by the
terms and conditions as enshrined in the petition.
Hence, we have resolved to part ways and seek a
decree of divorce. Our marriage may be dissolved and
a decree of divorce may be granted.”

[3]. After dissolution of marriage, petitioner has been taking

due care of the minor. Petitioner has also re-married with

Ashima Ahuja on 25.07.2015 after disclosing of his first

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marriage and custody of minor daughter. Ashima Ahuja has

accepted minor Shreya Ahuja as her daughter. She has left her

job for taking care of minor. Minor Shreya Ahuja is studying in

one of the best schools in Ludhiana i.e. Saint Mary’s

Kindergarten, B.R.S Nagar, Ludhiana. Petitioner has been

taking due care in respect of welfare of the minor. Minor Shreya

Ahuja has been made nominee in the insurance policies of the

petitioner. The first motion was recorded on 12.11.2012 by the

District Judge, Ludhiana, which was duly signed by both the

parties and witnesses. Joint statement of the parties on second

motion was recorded on 14.05.2013 and thereafter, decree of

divorce under Section 13-B of the Hindu Marriage Act was

passed. Respondent has also re-married with one Prashant

Rajanna.

[4]. During course of arguments, it was revealed that the

respondent has been blessed with a child from her second

husband. Respondent filed a petition under Guardians and

Wards Act, 1890 for custody of minor Shreya Ahuja, aged 5

years. Respondent has alleged that trauma of the marriage and

harassment of the respondent at the hands of the petitioner and

his family members was such an extent that the respondent

wanted to get out of the marriage in all possibility and was

swayed away by the insistence of the petitioner to keep the

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custody of the minor. Respondent agreed to the same at the

time of settling the terms of the divorce. The need of the

respondent at that time was to buy peace of mind and she

separated herself from the petitioner. She claimed that her

second husband is highly educated person being a qualified

engineer and is working as a Director, India Office in a

Multinational Aircraft Company namely Pilatus Aircraft Ltd. with

a salary package of Rs.50,70,000/- per year. Respondent is

also working in the same company as an Executive Secretary

and is drawing salary package of Rs.12,00,000/- per year. She

pleaded herself to be financial sound and comfortable. She

being natural mother, claimed custody of the minor as the

petitioner is living in joint family. Young brother of the petitioner

is still unmarried. His second brother is also having his family

comprising of his wife and two sons aged 10 years and 5 years.

Respondent alleged that the minor is not properly looked after.

[5]. Petitioner contested the claim of the respondent. He

has filed an application for dismissal of the petition on the

ground that after decree of divorce under Section 13-B of the

Hindu Marriage Act, terms and conditions of the divorce and

custody of the minor were settled with the concurrence of the

parties. The welfare of the minor lies with the petitioner only. At

the time of divorce, minor was only one year and six months of

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age and now she has grown up to the age of more than five

years. She is now studying in one of the good school i.e. Sat

Paul Mittal School, Ludhiana and is performing extremely well

in her studies. Minor Shreya Ahuja has been nominated as

nominee in the insurance policies of the petitioner. Minor Shreya

Ahuja has been participating in other extra curricular activities

as well.

[6]. Learned counsel for the petitioner relied upon Gaytri

Bajaj Vs. Jiten Bhalla, 2012(3) Apex Court Judgments 617

(SC) and Pushpa Devi Bhagat (D) through LR. Smt. Sadhna

Rai Vs. Rajinder Singh and others, 2006(3) Civil Court cases

540 (SC) and submitted that the welfare of the minor is to be

seen and the same is of paramount consideration. The welfare

of the child is crucial and ultimate consideration for the Courts. It

is not the better right of either of the parties that would require

adjudication while deciding their entitlement qua custody of the

minor. In Gaytri Bajaj’s case (supra), the Hon’ble Apex Court

had given the custody of the minor to the father with no visitation

right to the mother keeping in view the welfare of the child. In

Pushpa Devi Bhagar (D) through LR. Smt. Sadhna Rai’s

case (supra), the Hon’ble Apex Court held that consenting

order is not amenable to appeal. No independent suit can be

filed for setting aside a compromise decree on the ground that

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the compromise was not lawful in view of the bar contained in

Rule 3A of Order 23 CPC. A consent decree operates as an

estoppel and is valid and binding unless the same is set aside

by the competent Court. The only course available to the

aggrieved party is to approach the same Court by way of

moving an application.

[7]. I have considered the submissions made by learned

counsel for the parties.

[8]. Evidently, no such course has been adopted by the

respondent. In the impugned order dated 14.08.2015, Guardian

Judge, Ludhiana has observed that the parameters in terms of

Section 13-B of the Hindu Marriage Act and custody issue under

the Guardians and Wards Act are distinct and the wife has

come forward by showing change in circumstance for taking

custody of the minor.

[9]. At the time of dissolution of marriage, minor Shreya

Ahuja was one year and six months of age. Now she has

attained age of more than 8 years and is studying in Sat Paul

Mittal School, Ludhiana which is a reputed school. The child is

doing extremely well in terms of education and extra curricular

activities which can be appreciated from the progress report

card of the minor for the year 2016, 2017 and certificates of

participation in National Handwriting Competition and other

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CR No.5740 of 2015(OM) 8

extra curricular activities in which minor has participated. The

welfare of the minor in the facts and circumstances of the case

is only by living with the father. At the same time, filing of the

petition under Guardians and Wards Act is not maintainable

inasmuch as that under Order 23 Rule 3A CPC, the consenting

order is not amenable to appeal or independent suit. The only

remedy available to the respondent is to file an application in the

same case. A consent decree operates as an estoppel and is

valid and binding unless the same is set aside by the Court

which passed the consent decree, by an order on an application

under proviso to Rule 3 of Order 23 CPC. Having not done so,

in my considered opinion, petition filed by the respondent under

Guardians and Wards Act for taking custody of the minor is not

maintainable and the impugned order dated 14.08.2015 passed

by Guardian Judge, Ludhiana deserves to be set aside on the

parameters as laid down in Gaytri Bajaj’s case (supra) and

Pushpa Devi Bhagar (D) through LR. Smt. Sadhna Rai’s

case (supra). There is no change in circumstance except re-

marriage of the respondent from whom she has also blessed

with a child.

[10]. For the reasons recorded hereinabove, impugned order

dated 14.08.2015 passed by Guardian Judge, Ludhiana is

hereby set aside. Revision petition is accordingly allowed,

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thereby allowing the dismissal of the petition under Guardians

and Wards Act filed by the respondent for taking custody of

minor Shreya Ahuja.

May 29, 2018 (RAJ MOHAN SINGH)
Prince JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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