Wednesday, 2 March 2016
Precaution to be taken by court while passing decree for divorce by mutual consent
In the instant case, the terms and conditions mutually arrived at between the parties before filing the petition under Section 13-B of the Act would disclose that the respondent had agreed to have the custody of the child born to them and also agreed to receive a sum of `5 lacs in lump-sum, not only for her maintenance, but also for the maintenance of the child. The parties had not thought of making a provision in the property of the appellant or the properties of the father of the appellant. The minor child is entitled to get a share in the property of the appellant or in the properties of the appellant's father only within the ambit and scope of the Hindu Succession Act, 1956. Her entitlement to a share in their properties as per the above Act cannot be curtailed by the appellant and the respondent even by way of compromise. It is found that the trial Court, without any issue having arisen as regards the lien of the minor over the property of the appellant or his father, chose to grant lien over the property of the appellant and his father.
It is a settled position of law that unless the parties are directed to address a particular issue arisen in the lis, no Court can pass any direction affecting the interest of one or the other, behind their back.
There is no material to show that the issue as regards the lien of the minor over the property of the appellant and his father was the subject matter of adjudication before the trial Court. The petition under Section 13- B of the Hindu Marriage Act, 1955 not even vaguely refers to the lien for the minor to be created in the property of the appellant and his father. Even the counsel before the trial Court would not have addressed any argument before the trial Court with respect thereto. No issue also was formulated for discussion by the trial Court. The trial Court is not supposed to issue such directions in its whims and fancies.
Punjab-Haryana High Court
Harinder Pal Singh vs Ramandeep Kaur on 2 March, 2015
CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL. HON'BLE MRS. JUSTICE RAJ RAHUL GARG. Citation;2016(1)ALLMR(JOURNAL)46
https://www.lawweb.in/2016/03/precaution-to-be-taken-by-court-while.html
