HARKESH KUMAR DANG  Vs TAMANNA DANG -Judgment by Delhi High Court

$-22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 12.01.2023

+ MAT.APP.(F.C.) 200/2022 & CM APPL. 54168-54171/2022
HARKESH KUMAR DANG ….. Appellant

versus

TAMANNA DANG ….. Respondent
Advocates who appeared in this case:
For the Appellants: Mr. Sunil Dalal, Senior Advocate with Mr.Sujeet Beniwal, Mr.Nitish Pande, Ms.Manisa Saroha and Ms.Pratibha Varun, Advocates
For the Respondents: Mr. Sunil Mittal, Senior Advocate with Mr. Dhruv Grover, Mr. Gandharv Kharbanda, Mr. Sanjiv Saluja and Ms. Shreya Maggu, Advocates with respondent in person.
CORAM:
HON’BLE MR. JUSTICE SANJEEV SACHDEVA
HON’BLE MR. JUSTICE VIKAS MAHAJAN

JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Appellant/father (Harkesh Kumar Dang) impugns order dated 12.12.2022 of the Family Court whereby the Family Court has held that the ordinary place of residence of the child �Vivaan Dang� being Munich, Germany, the Courts at Delhi would have no territorial jurisdiction and accordingly dismissed the Guardianship Petition filed by the Appellant/Petitioner (father of the child), under section 7 read with sections 8, 12 and 25 of the Guardian & Wards Act, 1890, on the ground of lack of territorial jurisdiction. The passport of the child was directed to be released to the Respondent/mother (Tamanna Dang), which has already been released to her.
2. After some discussions, parties, who are also present in court in person, have agreed to end all their disputes, vis-�-vis, their inter-se marital relationship; custody of the child; visitation rights of the appellant vis-�-vis, the child and the financial support for upbringing of the child to be provided by the appellant to the respondent.
3. The settlement terms duly signed by the parties as well as their counsels have been handed over in Court. The same are taken on record.
4. The settlement terms agreed to between the parties are extracted herein for the purposes of completion and are as under:-
1. It is agreed between Harkesh Kumar Dang and Tamanna Dang that Tamanna Dang being the mother of Vivaan Dang will be lawful guardian of Vivaan Dang.
The child VIVAAN will return to Munich, Germany with the mother, namely, Tamanna. Tamanna will have sole custody rights of the minor child and Harkesh will have only visitation rights. Moreover, the Tamanna will shall be at [sic] exclusive rights to decide all the major decisions in respect to Vivaan�s upbringing.

i) During 06 weeks of vacations in August to September of each year; Harkesh and Tamanna will share the vacations on 50:50 basis and the child Vivaan will spend 03 weeks with the father in Delhi, NCR.
ii) During 02 weeks of vacations in December-January of each year, the child will spend 01 week with the father in Delhi, NCR (India).
iii) Harkesh will not remove the child out of Delhi, NCR (India) without the written consent of the mother/Tamanna. For facilitating visitation, as agreed in Clause (i) and (ii), Tamanna and the child will travel to Delhi (India) and Harkesh will provide To-Fro air tickets for both. Harkesh is [sic] liberty to avail visitation rights {as agreed in Clause (i) and (ii)} by coming to Munich, Germany. Tamanna shall always retain the passport of the child with her. Tamanna can speak with the child once every day through Video-Audio call; Tamanna will meet the child twice a week for about 02 hours each time. During the time the child spends with the father/Harkesh, the father will ensure that the location of the child�s mobile phone is �On�.
iv) Harkesh will have access to the child through audio-video call during the period the child is with Tamanna in Germany, at-least 05 times a week varying 10-15 minutes and the child will be provided with the mobile phone.
v) Harkesh shall pay to Tamanna for up-bringing of Vivaan 1000 Euros every month during the first year from the date of signing of this settlement agreement, after one year from the date of signing of this settlement agreement, it shall become 1,500 euros every month and after two years from the date of signing of this settlement agreement, it shall be 2,000 euros every month by way of bank transfer in below German Account of Tamanna Dang. BANK NAME: DEUTSCHE BANK Munich, Germany Beneficiary Name: Tamanna Dang IBAN: DE57 7007 0024 0708 5152 00 BIC : DEUTDEDBMUC The remittance shall be made not later 7th day of each English Calendar month.
vi) Should Harkesh decide to re-locate himself back to Munich, Germany. The Visitation rights for Harkesh shall be every alternate week from Thursday to Monday Morning in addition to that fixed in Para 1 of clauses (i) and (ii). Tamanna shall always retain the passport of the child with her. In case Harkesh wishes to travel with Vivaan outside Munich, Germany Tamanna shall provide travel documents Vivaan after Harkesh provides guarantee of Vivaan� safe return to Germany along-with documents which are to be restored to Tamanna. Harkesh shall also provide guarantee of the aforesaid return to the Hon�ble Court of Munich, Germany or the local police authorities. Tamanna can speak with the child once every day through Video-Audio call; Tamanna will meet the child twice a week for about 02 hours each time. During the time the child spends with the father/Harkesh, the father will ensure that the location of the child�s mobile phone is �On�.
vii) Should Tamanna decide to obtain German passport for the child Vivaan, the father/Harkesh will cooperate and facilitate by all means including appending his signature on the application for issuance of German passport to the child Vivaan.
viii) Both, Harkesh and Tamanna agree that the above arrangement is for a period of 04 years i.e., till the child turns 12 years of age and thereafter Harkesh and Tamanna shall, keeping best interest and welfare of the child Vivaan and also subject to the child�s education and extracurricular activities can review only the visitation schedule. Should there be any difference in consensus, either party can seek appropriate direction from the Court of appropriate territorial jurisdiction.
ix) Tamanna Dang shall give her no objection if required to the immigration agencies in case Harkesh Kumar Dang intends to travel to Munich, Germany.
x) Tamanna shall make endeavors get Vivaan enrolled in preferably a school where English language is an option.
2. That both, Harkesh and Tamanna have agreed to part ways by seeking divorce by mutual consent under Section 13-B of the Hindu Marriage Act and they agree and undertake to cooperate with each other in filing the joint petitions under Section 13-B(1) and 13-B(2) of the Hindu Marriage Act. Harkesh will get prepared joint petitions and both the parties shall file the First Motion Petition within 03 days of the Settlement being accepted by the Hon�ble Court. Both the parties also agree to file joint petition under Section 13-B(2) of the Hindu Marriage Act with an application for waiver of statutory period of 06 months in terms of judgment of Apex Court in AMARJEET SINGH. VS. HARLEEN KAUR. Both the parties will pray to the Hon�ble Court seeking appropriating directions of the ld. Judge to expeditiously take up the joint petitions and also to waive the statutory period of 06 months and dissolve the marriage between the in accordance with law. Tamanna also seeks further directions that she may be allowed to join proceedings before the ld. Family Court through video conferencing. Moreover, Tamanna will be at a liberty appoint someone as an attorney to represent her in the divorce proceedings. Harkesh Kumar Dang and Tamanna Dang shall immediately after signing of this agreement move a petition for divorce by mutual consent. Both of them shall make endeavors secure a divorce decree within 10 days of execution of this agreement. In case, in 12 days divorce decree is not obtained, Tamanna Dang shall authorize her maternal uncle Sh. Kamal Kishore Khattar to represent her in divorce proceedings as well all other litigations pending in India. Harkesh shall be at a liberty to also appoint an attorney to represent himself in pending cases in India.

Tamanna Dang along with Vivaan Dang shall travel on 23rd January 2023.
3. Harkesh shall, within 03 days of this Settlement Agreement withdraw ante suit for injunction filed by him against Tamanna being suit No.HMA Petition No. 867/2018 pending before the Hon�ble Principal Judge, Family Court at Gautam Budh Nagar, Uttar Pradesh. Harkesh has filed a case against Tamanna under POCSO Act in which the prosecution has filed closer report, Harkesh has filed a Protest Petition in the said case. Harkesh agrees and undertakes to withdraw the Protest Petition and also agrees that he has no objection to the case being closed by the Hon�ble Court of the Additional District and Session Judge POCSO-1, Gautam Budh Nagar, Noida, Uttar Pradesh. Tamanna Dang shall forward the copy of this memorandum to her attorney in Munich, Germany.
4. At the instance of Tamanna following FIRs are registered against Harkesh :
a. FIR No.No.842/2020 under Sections 363 and 365 of IPC in P.S. Rajouri New Delhi 110027;
b. FIR No. 253/2021under sections 498A, 406 and 34 of IPC in P.S. Rajouri, New Delhi 110027.
After the marriage between Harkesh and Tamanna is dissolved by a decree of divorce by mutual consent, within 03 days Harkesh shall file petitions under Section 482 Cr. P.C. for quashing of both the FIRs and Tamanna agrees and undertake to cooperate, assist and facilitate by appending her signatures on any desired document and giving No Objection for the FIRs being quashed by Hon�ble High Court.
5. Following litigations are filed at the instance of Tamanna and pending in Munich Courts, Germany against Harkesh:
i. Proceedings for custody of the child Vivaan;
ii. Criminal case of kidnapping Vivaan;
iii. Divorce petition with insurance claim;
iv. Maintenance case;
v. DV case, which is suspended for the time being.
Tamanna agrees to put an end to the litigation in Germany in the following manner:
i. Tamanna and Harkesh will move the court in the custody petition to mirror the order of Hon�ble High Court of Delhi (India) and dispose of the case;
ii. After the divorce decree is passed by Competent Court in India, the divorce case filed by her in Germany would become infructuous and she would withdraw the same after informing the court that divorce has been granted by Court in India. She would simultaneously also forego the insurance claim in the divorce proceedings in Germany.
iii. Harkesh through his attorney shall apprise the court where the DV case is pending in Germany intimating that the settlement has taken place and praying for closer of the DV case. Tamanna agree and undertakes to cooperate in closer of the said case and do all that would be necessary for its closer.
iv. Harkesh through his attorney in Germany shall take necessary steps for closer of kidnapping case filed in Germany and Tamanna agree and undertakes to cooperate in closer of the said case and do all that would be necessary for its closer.
v. It is agreed between the parties that the litigation cost of withdrawn of the cases mentioned in para 5 shall be borne by Harkesh only.
6. Both, Harkesh and Tamanna shall work towards development of the child by being positive and neither shall poison the mind of the child against each other.
7. Both, Harkesh and Tamanna agree and undertake that neither shall litigate with each other and institute any further case except being what is required to be done for putting an end to the pending cases. Only in the event of breach of any of the settlement terms the person aggrieved may take legal steps.
8. Both, Harkesh and Tamanna jointly pray that the Hon�ble Court may be pleased to dispose of the appeal in the above terms. The Hon�ble Court may pass any other or further order or directions it may deem fit and proper under the facts and circumstances of the case.
5. We have perused the terms of settlement and find the same to be lawful. The parties who are present in Court in person undertake that they shall abide by the terms and conditions of settlement in letter and spirit. They further state that they have entered into the settlement for the betterment of the child.
6. Parties further undertake that, even though the Family Court has held that there is no jurisdiction of the Court at Delhi, however, for the purposes of ending their long standing disputes, they have agreed to submit to the jurisdiction of the Courts at Delhi for the purposes of the present settlement. They further undertake that they shall take requisite all steps for having a mirror order passed by the Competent Court of jurisdiction in Germany, to mirror the terms and conditions agreed to herein.
7. Parties further undertake that they shall abide by the terms and conditions of the settlement and the orders passed by this Court as well as the Courts at Germany.
8. Parties further undertake to file an application for grant of divorce by mutual consent before the Courts at Delhi and also apply to the court for waiver of the statutory period of six months as prescribed under Section 13(B) (2) of the Hindu Marriage Act, 1955.
9. The undertakings are accepted.
10. On an application being filed seeking waiver of the statutory period of six months, the Family Court shall take into account the fact that the parties have separated in March, 2018 and have been litigating since 2019 and grant waiver of the statutory period of six months as prescribed under Section 13(B) (2) of the Hindu Marriage Act, 1955.
11. Further, in view of the settlement between the parties, we hereby declare that the respondent-mother Tamanna Dang shall be the legal guardian of the minor child Vivaan Dang and we request all Courts/Authorities of competent jurisdiction, inter-alia, at Germany to consider the respondent-mother Tamanna Dang as the legal guardian of the minor child Vivaan Dang for all purposes and intent.
12. The Respondent Tamanna Dang shall be entitled to travel to Germany with Vivaan Dang on 23rd January 2023 or on such other date as she may decide.
13. Appellant shall have visitation rights as agreed to between the parties and as extracted herein above.
14. The appeal is disposed of in the above terms, which shall specifically form part of this order.
15. We would like to place on record our appreciation for the grace and compassion shown by the parties in resolving their disputes keeping in view the best interest of their child and we expect that in future also they shall show similar compassion and grace for amicably resolving any issue that may arise. We also place on record our appreciation for the efforts put in by the respective counsels for the parties in bringing about this settlement.
16. Copy of this order be supplied dasti to the parties under signatures of the Court Master.

SANJEEV SACHDEVA, J

VIKAS MAHAJAN, J
JANUARY 12, 2023
�rs�

Neutral Citation Number : 2023/DHC/000230

MAT.APP.(F.C.) 200/2022 11