'Erroneous': Gujarat High Court Quashes Order Declining Execution Of Consensual Divorce Decree Over Property Dispute Between Parties

The Gujarat High Court quashed a family court order which refused to execute a decree of divorce by mutual consent, observing that when the husband and wife had agreed to compromise decree with conditions and not to go for adjudication of rights then family court had no option but to execute it.The court was hearing a man's plea challenging a family court's order which had refused to execute the decree of divorce by mutual consent agreed between him and his wife which contained certain conditions. A division bench of Justice Sangeeta Vishen and Justice Nisha M Thakore in its order held:"It has been held and observed that the parties having settled the matter on terms and conditions specifically recorded in the settlement deed and compromise decree having been passed; the intention of the parties stands incorporated in the decree passed by the Court and the settlement decree must be executed and should not be interfered with by modifying or going behind it. Therefore, the executing Court ought to have executed the decree in terms of the compromise. In fact, the Court proceeded on an erroneous footing that since the issues have not been adjudicated between the parties, it cannot be executed".The bench noted that in the execution petition before the trial court, the wife did not raise any objection as available under Section 47 CPC and she cannot now contend before the high court that the compromise decree was not valid or that it is null and void. The appellant husband had moved the family court order wherein his application seeking execution was rejected on the ground that the respondent wife cannot be directed to execute the deed of relinquishment/surrender of a property. The husband and the respondent-wife, started living separately from 03.05.2017. On 15.02.2019, both, the appellant and the respondent jointly filed a plea seeking divorce with mutual consent under Hindu Marriage Act containing various terms and conditions. As per one of the conditions in the petition, the wife had agreed to relinquish and surrender her right in the property in favour of the husband unconditionally and without any consideration.It was further agreed that she shall execute a release deed and transfer her right in favour of the husband. She had also agreed that she shall extend full cooperation in taking steps, by reaching the advocate and the Sub-Registrar for signing and executing the documents. The petition was allowed in terms of the settlement and the decree dated 25.07.2019 was drawn accordingly.Thereafter the husband addressed an email to the wife o 21.03.2021informing her that as the home loan is being transferred to another bank, he is facing problem in view of the respondent being co-applicant. She was requested to make herself available at the Sub-Registrar's office to make changes. The wife in her response raised a concern about adding the name of daughter in the property and removal of her name. The husband responded by stating that at present, only the name of the wife would be removed as per the decree. Since the removal was not agreeable without adding the name of the daughter, the wife did not make herself available and hence, notices were issued by both the parties through their advocates. The husband filed execution petition for executing the decree. The family court rejected the husband's request. The husband had before the high court sought a direction to the wife to execute a deed releasing and transferring her right in the property in his favour. He also sought visitation rights with respect to his daughter and a direction to restrain the wife from selling, transferring, dealing with the property in any manner or entering or disturbing his possession.The court said that it was wrong on the part of the family court to observe that the compromise decree is not capable of being executed. "The Court was also of the opinion that the right or title of any of the property was not an issue before the Court and in the absence of any adjudication thereof by the Family Court, the execution cannot be ordered. The findings are incorrect as much as petition was filed containing agreed terms and conditions, coupled with the evidence-in-chief which, culminated into passing of the judgment and decree dated 25.07.2019 and the Court has ordered, the suit to be decreed as per the terms and conditions stated in the petition. Clearly, the provision of Order XXIII Rule 3 provides that if it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the Court, shall proceed to pass the decree in accordance therewith. The judgment and decree have been passed in terms of the mutual consent and the petition was not contested on merits by the parties. Hence, no question arose of adjudicating the right, interest or entitlement of the parties in any properties including the property in question," the high court said.The court said that the decree had attained...

'Erroneous': Gujarat High Court Quashes Order Declining Execution Of Consensual Divorce Decree Over Property Dispute Between Parties

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