POONAM SHARMA Vs. DISTRICTJUDGE/FAMILY COURT MEERUT

JUDGEMENT

(1.) THE petitioner Smt. Poonam Sharma and Dr. Girish Kumar Sharma the respondent No. 2 were married in the year 1986. A joint petition for divorce under section 13-B of the Hindu Marriage Act was filed by the parties in the year 2005. Subsequently the petitioner applied for withdrawing her consent. The application for withdrawal of the consent was opposed by the respondent No. 2 Dr. Girish Kumar Sharma. The Family Court passed an order dated 4. 12. 2006 holding that before the petitioner could be allowed to withdraw her consent it was necessary to examine whether the consent first given by her was voluntary or was obtained by coercion etc. and whether the withdrawal of the consent is also bona fide and that on these points the parties should be allowed to adduce evidence. On 18. 4. 2007 the Family Court framed three issues: whether the consent of the petitioner Smt, Poonam Sharma in the joint petition was obtained by fraud, and whether application for withdrawing her consent was bona fide, and a third, issue regarding relief. Both these orders have been challenged by the petitioner in this writ petition.

(2.) IT is submitted by the petitioner's Counsel that the right to withdraw consent can be exercised unilaterally and the Court below has erred in directing issues to be framed. On the other hand it is submitted by the respondents Counsel that the parties had settled their rights in respect of their properties and other matters including custody of children and withdrawal of consent would be unjust and that the petitioner has no unconditional and unilateral right to withdraw the consent. In order to appreciate the submissions advanced it is necessary to refer to the pleadings of the parties.

(3.) IT is stated in the joint petition that two daughters Km. Shruti Sharma then aged 17 years and Km. Kirti Sharma then aged about 16 years were born of the wedlock. In paragraph 7 it is alleged that during the long span of marriage every thing went quite smoothly but about two years back it transpired that the parties had has lost love and faith for each other. In paragraph 8 it is alleged that there were temperamental differences between the parties reaching a level it had become impossible for them to live together. In paragraph 9 it was stated that the parties started to live separately and Dr. Girish Kumar Sharma left the company of his wife on 5. 8. 2004. The joint petition also contains certain averments regarding the arrangement/settlement of certain properties. In paragraph 11 it is stated that it was mutuallv agreed that Smt. Poonam Sharma shall be the exclusive owner of House No. A-45, Samrat palace, Meerut and that Dr. Girish Kumar Sharma shall vacate the said premises by the date of filing of the petition. In paragraph 12 it is alleged that there is another property, which is a plot at Shatabdi Nagar, A-115, Sector-5 Pocket-A, Meerut and Smt. Poonam Sharma has transferred the said plot by executing a sale deed in favour of Dr. Girish Kumar Sharma on 24. 8. 2005. It is also stated in this paragraph that Dr. Girish Kumar Sharma took a loan upon this property and that he would clear the said dues and deliver a receipt of the same to Smt. Poonam Sharma who would be entitled to get the sale deed back from the bank. In paragraph 13 it is stated that Smt. Poonam Sharma would have no right over plot No. B-42, Phase-II, Ved Vyaspuri, Meerut. In paragraph 14 it is stated that there is a joint application that Sahara City Homes in respect of which Rs. One lac has been deposited and that Dr. Girish Kumar Sharma has waived his right regarding the said deposit. In paragraph 15 it is stated that Smt. Poonam Sharma has waived her right of maintenace and stridhan from Dr. Girish Kumar Sharma but Dr. Girish Kumar Sharma shall pay Rs. 15,000/- per month to Smt. Poonam Sharma for maintenance of the children regularly. In paragraph 16 it is stated that Dr. Girish Kumar Sharma has withdrawn the Civil Suit No. 674 of 2005, which is pending in the Court of Civil Judge (Senior Division), Meerut in which 24. 8. 2005 was fixed and that he would not make any claim regarding the said property in any Court of law. In paragraph 17 it is stated that both the children will live with Smt. Poonam Sharma and Dr. Girish Kumar Sharma would not claim their custody but he would be at liberty to meet his children. This joint petition is dated 29. 8. 2005.