Arpit Maheshwari vs Smt. Megha Maheshwari

Shailendra Shukla, J

This appeal has been filed under provision of Section 19 of the Family Courts Act, 1984, read with Section 28 of the Hindu Marriage Act against the dismissal of petition for divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred as 'the Act').

2 . As the facts of the case marriage between appellant Arpit Maheshwari and respondent Megha Maheshwari was solemnized on 12.6.2012 as per hindu rites and customs. The parties were blessed with son who resides with respondent/wife.

After marriage, the appellant has alleged that when respondent after marriage went back to her maternal home and came back, her behaviour towards appellant changed and she started fighting on trivial matters and became aggressive. She became non-cooperative and started demanding to live separately with the appellant instead of living in a joint family. She came back without any reason to her maternal home saying that she will come back only when a separate living arrangement is arranged. Thereafter in the upper portion of the same house, the appellant made arrangements for separate living of appellant and the respondent. However on 12.3.2014, the respondent fought with appellant aggressively and also physically assaulted him. The respondent threatened to commit suicide and left him.

The respondent in her reply has stated that after getting back from honeymoon, the appellant started harassing her accusing her of bringing less dowry. The appellant also tried to abort the pregnancy by giving her medicines against the advice of doctor. During pregnancy, she was admitted in the hospital but husband came to see only once or twice and was not ready to adopt the child as his son and the husband and his family also did not participate in an event held to celebrate the birth of child. The wife was always ready to lead a maternal life with husband but the husband pressurized her to leave her and made wrong allegations about her before her relatives. In a settlement meeting between the parties also assaulted the father of the respondent/wife. The respondent submits that the appellant wants to remarry and hence making false allegations against her.

The family Court, Indore in Hindu Marriage Case No.1205/2015, vide judgment dated 8.1.2018 came to a conclusion that the husband has not able to prove cruelty committed upon him by the respondent and dismissed the divorce suit. Against the aforesaid judgment, the present appeal has been filed in which the conclusion arrived at by the learned Family Court has been challenged.

During the course of the proceedings of this appeal, an application under Section 13-B of the Act for divorce by mutual consent was filed which is I.A.No.2541/2020.

This Court vide order dated 10.8.2020 has directed the parties to appear before the Principal Registrar on 17.8.2020. On 17.8.2020 when the parties were directed to appear before the Registrar, learned counsel for the respondent/wife has stated that due to Covid 19 pandemic situation, the respondent could not appear before the Registrar.

However on 17.8.2020, she was made to be present through video conferencing. She was identified by her counsel Ms. N. Sharma. The respondent Megha Maheshwari speaking through video conferencing has categorically stated that the compromise application has been filed jointly by her and the appellant. The appellant husband was also present before the Court on 17.8.2020 and has been identified by Shri Prateek Maheshwari, Advocate for the appellant.

9 . Both the parties have filed a joint affidavit in support of the application filed under Section 13B of the Act. In the application filed under Section 13B of the Act, the parties have mutually agreed upon the following terms and conditions for the divorce :-

(a) The appellant will provide a total amount of Rs.21.00 lacs (Rs. Twenty One lacs) to the respondent. This amount shall include Rs.10.00 lacs towards permanent alimony of respondent and an amount of Rs.11.00 lacs towards well being and maintenance of their son Darsh towards full and final settlement of the matter by way of fixed deposit scheme in favour of respondent No.2/Darsh respectively which shall be provided to the respondent No.2 before Court at the time of hearing.

(b) The respondent makes complete waiver of her property rights in property of appellant or his family for herself as well as on behalf of her son and undertakes not to make any future claims of property right or any other rights arising out of marriage since she has already obtained the amount in this regard.

(c) The son of parties namely Darsh who is currently residing with the respondent would be residing with her in future also and she shall keep the son with proper care, however, the appellant or his family members shall be free to visit son as and when he wants to which the respondents hereby consent and she would cooperate in such meetings without any hindrance.

(d) The parties shall not interfere in each other life in any manner in future and none of the parties would act in a manner themselves or through any other person or agency to endanger the personal security of each other. The parties shall also be free to enter in to marriage after passing of this decree.

(e) In the light of the compromise entered into between the parties, all the litigation and disputes including proceedings pending in connection with marriage including proceedings under Domestic Violence Act at D.V. Case No.27/15, pending before the learned JMFC Kannod District Dewas, shall stand withdrawn and all other proceedings if pending shall also stand withdrawn. The parties would also not litigate against each other in future and would withdraw all claims and litigation against each other in light of the present compromise.

(f) That both the parties shall have on satisfaction of the aforesaid terms no further claims whatsoever against each other from this day onwards and the terms of the above mentioned deed would be binding upon them.

In the application, it has been mentioned that parties were not living with each other since 26.4.2015 and there are no chances of them living together in future and that they have agreed for dissolution of marriage of their own free will and consent. The consent has not been given by other party by fear, force, fraud, coercion or undue influence. It is further stated that there is no collusion between them and the present application has been filed for amicably full and final settlement between the parties. The present application has been signed by both the parties and carries an affidavit in support.

In view of the application and admitted position that both the parties have been living separately for a period of more than one year and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved, the application filed under Section 13B of the Act is being under taken for consideration.

On due consideration of the aforesaid, we are satisfied after hearing the parties and after making due enquiry from both the parties as well as from learned counsel appearing on behalf of them, that the averments have been made bonafidely. The aforesaid application under Section 13B of the Act has been filed on 15.7.2020.

There is a mandatory period of six months which is called cooling off period from the date of filing of the application and as per Section 13B of the Act, a decree of divorce of mutual consent can be granted only after expiry of the period of six months. However, the Supreme Court in number of judgments has termed the aforesaid period of six months as not mandatory but directory and it has been left open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation. In the present case, all other efforts of mediation and conciliation have run their course, parties have genuinely settled their differences including alimony, custody of child etc and they are living separately for over four and half years and therefore, the cooling off period of six months would be waived of in the present case. The counsel for the appellant has been directed to handover the cheques to the respondent subject to such payment, a decree for divorce by mutual consent is directed to be drawn by the Family Court. The marriage between both the parties stands dissolved in terms of the conditions mentioned in the application under Section 13B of the Act, which shall be reflected in the decree which shall be drawn up by the Family Court.

With the aforesaid, this first appeal stands disposed of in above terms.