Mohit vs Shweta

Sushrut Arvind Dharmadhikari, J

Heard on I.A. No. 8760/2023, an application under Order 23 Rule 3 r/W Section 151 CPC .

2 . The present appeal has been filed by the appellant (husband) being aggrieved by the judgment and decree dated 28.06.2019 passed by the 2nd Additional Principal Judge, Family Court Distt. Indore, in HMA No. 1230/2016, whereby the application seeking divorce under Section 13 (1) of the Act on the ground of cruelty has been rejected.

I.A. No. 8760/2023 is a joint application filed by the parties seeking divorce by mutual consent.

The brief facts of the case are that the appellant and the respondent got married on 30.01.2015 according to Hindu rights and customs. Both of them are residing separately since the last more than 08 years. An application was filed by the appellant/husband before the family Court on the ground that on day one, respondent/wife has put forth a condition before the appellant that before they start their marital life, he has to handover all the ornaments, cash etc. to her . When appellant has shown inability in doing so, she started hurling filthy abuses and assaulted him physically as well. Appellant has informed about the said behaviour of respondent/wife to her parents also, but to no avail. Though both of them live in same flat, but there was no cohabitation between them. Respondent/wife told the appellant that she want a luxurious independent life and on 15.02.2015 when he said that he has a meagre income, she again started physically assaulting him. Due to fear of social indignity, he could not have reported the matter to the police. Respondent/wife has left the matrimonial house on 23.03.2015 without any rhyme or reason and had taken away all the stridhan. From time to time, appellant has send legal notices to the respondent/wife. On 10.06.2016, respondent's father warned appellant that he is a Tax Advisor and he will rope him in false cases. Even on 16.05.2015, respondent's parents came to the house of appellant and demanded Rs. 10,00,000/- and again warned him of roping him in false cases. The Presiding Officer, Family Court after taking evidence of both the parties dismissed the application filed by the appellant.

5 . On account of irreconcilable differences, the marriage has been irretrievably broken down between the parties, also there remains no possibility o f reconciliation, therefore, the present first appeal has been filed before this Court. This Court also tried its level best to explore the possibility of amicable settlement by way of mediation, but mediation proceedings have failed.

During pendency of present appeal, the appellant and the respondent have decided to obtain a decree of divorce, therefore, they have filed the joint application for grant of divorce by mutual consent. It is stated that since both of them are already living separately, therefore, pendency of the divorce petition for more than six months would seriously affect the future of both the appellant and the respondent. Moreso, the appellant has already paid Rs. 5,00,000/-(Rupees Five Lakhs) vide Bank Draft. No. 596958, dated 03.11.2023 to the respondent/wife and the said Bank Draft has already been accepted by her as full and final settlement towards permanent alimony.

Hence, it is prayed that in the light of the Apex Court judgment in the case of Amardeep Singh Vs. Harveen Kaur reported in AIR 2017 SC 4417, the cooling period of six months may be waived off. It is further stated that lot of efforts have been made by both the parties as well as this Court to dissolve the dispute amicably but the same has failed and respondent and appellant are living separately and there is no possibility of compromise between the parties in future.

8 . The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur(supra) has held as under:-

"Applying the above to the present petition, 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 13B(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 XXXIIA Rule 3 CPC/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."

In view of the above judgment passed by the Apex Court and taking into consideration the fact that now the parties have amicably settled the matter and are already living separately and there are no chances of any settlement between them, hence, the cooling period of six months is also waived off.

The factum of compromise has been verified in the Court itself since both the parties were present before this Court and have amicably presented application under Order 23 Rul3 3 CPC r/W Section 151 CPC. The application is duly supported by an affidavit of both the parties.

On the basis of aforesaid, the application filed by both the parties under Order 23 Rule 3 CPC r/W Section 151 CPC is allowed. The impugned judgment and decree dated 28.06.2019, passed in HMA Case No. 1230/2016 by the Additional Principal Judge,Family Court ,Indore is hereby set aside. The marriage solemnized between the appellant/husband and respondent/wife is dissolved.

Let a decree be drawn granting divorce by mutual consent which shall form part of the terms and conditions enumerated in the aforesaid application.

Appeal stands disposed of. No order as to cost.