Manish Verma vs Pooja Verma

Heard.

The instant appeal is against the order dated 15.02.2022 passed by Learned Family Court, Bemetra wherein an application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights was dismissed. The application under Section 9 for restitution of Conjugal rights was preferred by the husband and the present appeal is also by the husband.

During the course of hearing before this Court, parties were sent for mediation to explore the chances of settlement, if any. The mediation took place and the parties who are present in person namely Manish Verma and Smt. Pooja Verma both submit that they have decided to part their ways and agreement styled as "Samjhauta Patra " is also been placed which bears the signature of both the parties and their advocates. Application has also been filed under Section 13 (B) of Hindu Marriage Act, 1955 for dissolution of marriage by mutual consent. The perusal of the agreement entered in between the parties would show that they have decided to mutually part ways and submit that no further claims would be made in respect of the matrimonial ties and obligations. The agreement further purports that Rs. 5,00,000/- has already been handed over to the wife (respondent) by the husband (appellant). The wife Smt. Pooja Verma present before this Court affirms the fact that she has received the amount of Rs. 5,00,000/- and will take back CRI MJC No. 78/ 2022 and MJC No. 2/2020. The agreement further purports that the gift items received during the marriage have also been returned by the husband to the wife which are shown at Para 4 of the agreement. The wife who is present before this court admits to have received the goods.

Briefly stated facts of the case are that marriage was solemnized on 04.05.2017. Subsequently, they cannot go along and eventually started living separately since 02.01.2020 and all the efforts for reconciliation has failed. Husband filed an application for restitution of conjugal rights under Section 9 of the Hindu Marriage Act which was dismissed and the appeal was filed before this Court. The mediation report shows that efforts of reunion between the parties have failed and after the mediation they have decided to stay apart and also one time permanent alimony of Rs. 5,00,000/- has also been paid. During the course of submission both the parties mutually submit that cooling off period of 6 months may also be waived off and application I.A. No. 01 has also been preferred for waiving off the 6 months period.

Learned counsel for the appellant submits that the application for mutual divorce was filed on 08.08.2022 and waiver application has been filed on 10.08.2022.

In this context, the text of section 13-B of Hindu Marriage Act would be relevant here and quoted below:-

“13-B. Divorce by mutual consent.-- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section(1) and not later than eighteen months after the said date, if the period is not withdrawn in the meantime,the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

The Supreme Court in a case law reported in (2017) 7 SCC page 746 – Amardeep Singh Vs. Harveen Kaur has held that in the year 1976, the concept of divorce by mutual consent was introduced and however, section 13-B(2)contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grant divorce by mutual consent only if there is no chance for reconciliation. The Supreme Court has further laid down the following principles at para 19 :

“19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:

(i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself;

(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

(iv) the waiting period will only prolong their agony.

Applying the aforesaid principles to the present case the facts would suggest that after the marriage took place in 2017 both the appellant/ husband and wife/ respondent are living separately since January, 2022 and application under section 9 of Hindu Marriage Act by the husband also suffered the dismissal before the Family Court and thereafter the appeal having been filed both the parties who are present in person submit that they have decided to part their ways. Therefore, by all implication it goes to show, that after rethinking, the parties have come to a firm opinion and have come to settle that they cannot live together and want divorce. Further, the terms of the agreement arrived in between the parties would show that the permanent alimony has also been settled and paid along with the fact that all the matrimonial gifts "Streedhan" has been returned, which the wife present in person affirms to have received. Having stated so, it further fortified the intension to get separated and the cooling off period will only prolong their agony.

Under these circumstances, we grant the decree of divorce to the parties on their mutual consent and the cooling off period of 6 months is hereby waived off. Accordingly it is ordered that the marriage dated 04.05.2017 is dissolved by decree of divorce henceforth. Since permanent alimony has also been settled no further claim would be entertained on behalf of the wife as she appears to be satisfied to receive the permanent alimony and return of goods which was given to her during marriage. The agreement in between the parties styled as "samjhauta patra" dated 08.08.2022 shall be part of the decree

A decree be drawn accordingly.