LexNEETI MALVIYA versus RAKESH MALVIYA
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[2010] 6 S.C.R. 1103 NEETI MALVIYA V. RAKESH MALVIYA (Transfer Petition (C) No.899 of 2007) MAY 12, 2010 [D.K. JAIN AND C.K. PRASAD, JJ.] Hindu Marriage Act, 1955: A B s.13-8(2) - Divorce by mutual consent - Settlement c between the parties before Supreme Court Lok Ada/at - Terms of settlement complied with - WaiJ[ng of the period of second motion in terms of sub-s.(2) of s.13-8 - Held: The language of sub-s. (2) of s. 13-8 is clear and prima facie admits of no departure from the time frame laid down therein, i.e. the 0 second motion under the said sub-section cannot be made earlier than six months after the date of presentation of the petition under sub-s.(1) of s.13-8 - However, in view of more than one opinion expressed in the judgments of the Supreme Court on the issue, the matter referred to a three Judge Bench E to consider the question: whether the period prescribed in sub- s. (2) of s.13-8 can be waived or reduced by Supreme Cowt in exercise of its jurisdiction under Article 142 of the Constitution - Constitution of India, 1950 - Article 142. Anjana Ki shore vs. Puneet Kishore (2002) 10 SCC 194; F Anil Kumar Jain vs. Maya Jain 2009 (14) SCR 90 = (2009) 10 SCC 415; Manish Goel vs. Rohini Goel (2010) 2 SCR 414; Smt. Poonam vs. Sumi! Tanwar 2010 (3) SCR 557 = JT 2010 (3) SC 259 and Prem Chand Garg vs. Excise Commissioner, UP., Allahabad 1963 Suppl. SCR 885 = G AIR 1963 SC 996, referred to. Case Law Reference: (2010) 2 SCR 414 referred to 1103 para 3 H A B c 1104 SUPREME COURT REPORTS [2010] 6 S.C.R 2010 (3 ) SCR 557 referred to para 3 (2002) 1 o sec 194 referred to para 9 2009 (14) SCR 90 referred to para 10 1963 Suppl. SCR 885 referred to para 11 CIVIL ORIGINAL JURISDICTION : Transfer Petition (Civil) No. 899 of 2007. Satya Mitra, D.N. Pandey, Sanjay Jain for the Petitioner. Jasmine Damkewala, Sourabh Seth (for Karanjawala & Co.) for the Respondent. · The following Order of the Court was delivered D ORDER 1. This transfer petition has been filed by the petitioner- wife, seeking transfer of the Divorce Petition M.C. No.2168 of 2006 titled as Rakesh Malviya Vs. Neeti Malviya, filed by the respondent-husband, from the court of Additional Principal E Judge, Family Court, Bangalore (Karnataka) to the Family Court, Hoshangabad. (Madhya Pradesh). 2. After issuance of notice on 7th December 2007, efforts were made on various occasions to bring about a F comprehensive settlement of the matrimonial discord between the parties. On 6th September 2008, the parties agreed for mediation. Accordingly, the parties were referred to the Delhi High Court Mediation Centre. Ultimately, in proceedings before the Supreme Court Lok Adalat held on 25th April 2009, it was G reported that the parties had arrived at a settlement. The settlement agreement dated 24th April 2009 was taken on record. The relevant portion of the order passed on 25th April 2009 is extracted below: H " ... One of the terms so agreed upon is that the husband . NEETI MALVIYA 1.t. RAKESH MALVIYA 1105 is to pay to the wife an amount of Rupees sixty five lakhs A on or before 28th February, 2010. It is now agreed before us that the said amount of Rupees sixty five lakhs shall be . deposited in this Court as per the schedule of dates mentioned in the agreement. The amount, so deposited, shall be put in a Fixed Deposit Receipt for a period upto B 1st May, 2010. It is also agreed that when full amount in terms of the agreement is deposited, the parties shall, immediately C thereafter, move a joint application for grant of divorce by mutual c:onsent. On the passing of the decree for divorce, the amount deposited in this Court shall be released to Neeti without any delay." 3 .. The matter remained pending for some time but the parties continued to discharge their obligations under the terms D of settlement and when the case came up for hearing on 29th January 2010, it was stated that the respondent-husband shall deposit the last instalment of money, in terms of the settlement, E by 28th February 2009, which was done. However, when the matter came up for final orders on 10th May 2010, learned counsel for the parties sought time to go through the two judgments of this Court in Manish Goel Vs. Rohini Goer and Smt. Poonam Vs. Sumit Tanwar, and assist the Court on the question whether the period of second motion in terms of sub- F .. section (2) of Section 13-B of t
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