Apurb Anand vs Smt. Nivedita

Sri Apurb Anand (the Appellant) and Smt. Nivedita (the Respondent) were married on 10.2.1997. A daughter, Km. Yashwini was also born out of the wedlock. Unfortunately, the terms between the parties were not cordial and they started living separately.

The Appellant filed matrimonial case no. 842 of 1998 u/s 13 of the Hindu Marriage Act for divorce. This case was decreed ex parte on 15.5.1999.

After expiry of the period mentioned in the decree, the Appellant remarried and out of this wedlock, two daughters were also born.

The Respondent also filed suit no. 1986 of 2009 u/s 13 of the Hindu Marriage Act. However, this suit was withdrawn on 20.2.2010 and the Respondent filed an application on 18.3.2010 alongwith an application to condone the delay for recalling the judgment and decree dated 15.5.1999 in Matrimonial case no. 842 of 1998.

In the aforesaid application, the delay was condoned on 20.9.2011. Hence the present appeal by the Appellant.

The parties alongwith their father were present before the Court on 7.2.2012 and they agreed to have the case decided on mutual terms. On their request, the case was put up on 8.2.2012. On that date, they filed a joint affidavit. The Appellant and the Respondent are dependent-1 and dependent-2 of the joint affidavit. The relevant paragraph (2 to 10) of the joint affidavit are as follows:

(2) That there was difference between the parties i.e. the appellant and the respondent. The parties/deponents have settled all their disputes, claims and differences and now they may be treated to be divorced by mutual consent.

(3) That deponent-1/Appellant will pay total Rs. 20 lakhs (Rupees Twenty lakhs only) to his dauthter Km. Yashwini for her marriage and education expenses. Out of this amount of Rs. 20 lakhs, the deponent-1 will pay Rs. 10 lakhs (Rupees Ten lakhs) by means of draft payable at Barabanki in the name of the daughter Km. Yashwini born out of the wedlock between the parties. On the next date, that may be fixed by this Hon''ble Court in the above appeal. This amount will remain in fixed deposit and shall be utilised for marriage of Km. Yashwini.

(4) The remaining amount of Rs. 10 lakhs will be paid by deponent-1 in the name of Km. Yashwini in 5 (five) equal instalment of Rs. 2 lakhs only payable in January every year up to 2017. The first instalment will be paid in January, 2013. All the above instalments will be paid by bank draft payable at Barabanki in the name of Km. Yashwini and shall be utilised for upbringing and education of Km. Yaswini.

(5) The respondent, her father or any person authorised by the respondent shall be entitled to receive the bank draft.

(6) That both the parties i.e. Appellant and Respondent of the above appeal declare the above settlement is towards full and final of all their past, present and future claims including claim of maintenance or permanent alimony or streedhan of the Respondent Smt. Nivedita.

(7) That both the parties agree and undertake that they will not institute any litigation (Civil or Criminal) against each other regarding any rights arising form the marriage between the Appellant and Respondent. They also declare that there is no other pending complaint or case filed by them against each other.

(8) That the custody of Km. Yashwini, the daughter of the parties shall remain with her mother i.e. deponent-2/Respondent. However, the Appellant shall have visiting rights to meet Km. Yashwini with prior information to the respondent.

(9) That the deponent-2/Respondent had no knowledge about the regular suit no. 842 of 1998 and ex-parte decree passed therein hence anything done or said by her due to such ignorance will have no adverse effect on her. Similarily, any averment made against deponent- 2/Respondent in regular suit or ex parte decree will not have any adverse effect on the deponent-2/Respondent or daughter Km. Yashwini.

(10) That remarriage of the Appellant will always be treated as valid. Two daughters borun out of the remarriage of the Appellant shall always be legitimate children of the appellant.

The joint affidavit was taken on record on 8.2.2012 and the case was ordered to come up on 1.3.2012.

The counsel for the parties are present. The respondent alongwith her father is also present before the court.

The counsel for the appellant has handed over a draft (No. 019222) dated 27.2.2012 of Rs. 10 lakhs drawn on Axis Bank Ltd in favour of Km. Yashwini payable at Lucknow. Alongwith this draft, a letter of Axis Bank has also been handed over to the respondent that the clearing centre for Axis Bank, Barabanki is Lucknow.

The first condition mentioned in joint affidavit has been complied by the Appellant. In view of above, the appeal is disposed of on the terms and conditions mentioned in the joint affidavit filed by the parties. The joint affidavit will also form part of the decree. The parties are granted divorce on the aforesaid mutual terms and conditions. These terms and conditions will override the ex parte judgment dated 15.5.1999.

The application filed by the Respondent to recall ex parte judgment dated 15.5.1999 is also pending before the Trial Court. That application shall be decided in the same terms.

With the aforesaid observations, the appeal is disposed of.