2-wp-13465-2022.
doc
SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13465 OF 2022
Bharat B Pawar … Petitioner
V/s.
SHABNOOR
AYUB
PATHAN
Girija B Pawar … Respondent
Digitally signed
by SHABNOOR
AYUB PATHAN
Date: 2023.09.12
10:43:59 +0530
Mr. Amol B Jagtap, for the Petitioner.
Mr. Anshuman R Asare a/w Mr. Ankur Pahade a/w
Mr.Swapnil Phatangare, for the Respondent.
Mrs. Girija B Pawar, Sole Respondent-in-person.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 11, 2023
P.C.:
1. Challenge in this writ petition under Article 227 of the
Constitution of India is to the order dated 17 August 2022 passed
by the Trial Court rejecting application of petitioner seeking
directions against the respondent to honor settlement pursis dated
30 September 2020. In the alternative, the petitioner prayed for
return of all money and property which were given to the
respondent in pursuance of joint settlement pursis dated 30
September 2020. The another order below Exhibit 69 for
enforcement of joint pursis is also rejected on 17 August 2022.
2. The petitioner has filed a petition for divorce under Section
13(1) (i-a) of the Hindu Marriage Act,1955. The proceedings were
1
2-wp-13465-2022.doc
referred for mediation before the mediator.
3. On 30 September 2020, the petitioner and respondent
agreed to settle the matter amicably.
4. Accordingly, consent terms were filed by the application
below Exhibit 58 which created obligations on both the parties.
5. According to the petitioner, he complied with the obligations
cast on him under the consent terms. However, the respondent
wife is refusing to comply with her part of the consent terms.
6. The petitioner, therefore, filed two applications before the
Trial Court seeking directions against the respondent to comply
with the consent terms which is rejected by the Trial Court holding
that the petitioner has available the remedy as per law.
7. Learned Advocate for the petitioner submitted that the
petitioner has complied with the obligations cast on him by clauses
3 and 4 of the consent terms namely by paying amount
Rs.12,50,000/- towards one time maintenance to the respondent
and also transferred the residential flat and has paid loan amount
on the said flat. According to him, obligations cast on petitioner as
per clauses 2, 6 & 7 of the consent terms have not been complied
with by the respondent.
8. According to respondent, clause 4 to the extent of payment
of the maintenance is not complied, clause 5 is for transfer of
Public Provident Fund (PPF) account in the name of respondent is
also not complied with.
9. According to respondent, once the decree for divorce is
2
2-wp-13465-2022.doc
passed, obligation under clause 1 will not be fulfilled and
therefore, respondent is not complied with clauses 2, 6 and 7 of
the consent terms.
10. With the assistance of learned Advocate for the parties, I
have scrutinized the consent terms. Considering this consent
terms, I am satisfied with all the terms are enforceable in law. The
material on record indicates that the petitioner has complied with
payment of Rs.12,50,000/- towards one time settlement by way of
maintenance to respondent. The condition under clause 4 is
complied with by transferring the residential flat to respondent.
11. In so far as, non-compliance under clause 5 by the petitioner,
on perusal of the said condition, it is clear that the said PPF
account needs to be transferred after passing of decree of divorce
between the petitioner and respondent.
12. The apprehension of non-compliance in future about sharing
respondents of higher education is misconceived as it is always
open for respondent to enforce clause 1 of the consent terms as
and when occasion arises.
13. It appears that the petitioner has paid maintenance amount
of the flat.
14. It is, therefore, necessary that the respondent to comply with
clauses 2, 6 & 7 of the terms and conditions.
15. It needs to be noted that the consent terms create mutual
obligation on the parties. The petitioner has performed his part of
the consent terms by paying amount or Rs.12,50,000/- and
3
2-wp-13465-2022.doc
transferred the residential flat. The respondent had accepted the
benefit arising out of consent terms. It is, therefore, not
permissible for respondent to wriggle out of consent terms of
accepting benefits of it. Therefore, it is necessary that the
respondent shall perform her part of obligations created under
clauses 2, 6 & 7 of the consent terms. Hence, pass following order:
a) The respondent shall perform her part under clauses 2,
6 & 7 of the consent terms within the period of two months
from today.
b) If the respondent fails to perform her part of the
consent terms within stipulated time above, the application
below Exhibit 63 filed before the Trial Court dated 7
September 2021 shall stand allowed in terms of prayer
clause (b).
16. The writ petition stands disposed of. No costs.
(AMIT BORKAR, J.)
