Naresh Kumar vs Smt. Sarla

V.K. Jhanji, J.—The husband (appellant herein) filed petition u/s 13 of the Hindu Marriage Act (for short the Act) against wife seeking divorce on the ground of cruelty and desertion. It was claimed in the petition that the marriage between the parties took place on 21.6.1963. Parties to the marriage have been living separately since July, 1986 and the present application for dissolution of marriage was filed on 19.8.1988.

During the pendency of the petition before the Additional District Judge, Gurgaon, a compromise was arrived at between the parties which was reduced into writing and in the said compromise the parties decided to seek divorce my mutual consent. The said compromise was placed on record as Ex. P.1. In the compromise, a sum of Rs. 21,000/- was paid to the wife in full and final settlement of her claim. She also undertook not to claim any maintenance or any amount, towards dowry, permanent alimony etc. etc. It appears that this compromise was not pressed during the pendency of the petition. The learned Additional District Judge, Gurgaon, dismissed the petition. The husband has impugned the decree dismissing his petition u/s 13 of the Act by way of this appeal.

Counsel for the parties have made a prayer that the parties have agreed to get the marriage dissolved by mutual consent u/s 13B of the Act. They further pray that the petition u/s 13 of the Act be converted into the one u/s 13B of the Act. They also pray that six months'' period as provided in Sub-section (2) of Section 13B of the Act, may be waived.

It is not disputed that the parties are living apart for the last more than six years. Marriage has irretriesvably broken as has been suggested by the learned Counsel for the parties. It appears that there is no chance of settlement between the parties. All the allegations made in the original petition by the husband against the wife shall stand withdrawn and the petition treated as one u/s 13B of the Act. I am also satisfied that in the circumstances of the present case, the provisions of Sub-section (2) of Section 13B of the Act is to be waived and I accordingly waive it.

The wife has already been paid a sum of Rs. 21,100/- in full and final settlement in respect of her claim including the maintenance, dowry, permanent alimony etc. etc. and she shall not be entitled to claim any thing against the husband. The marriage between the parties is hereby dissolved u/s 13B of the Act with no order as to costs.

This disposed of Civil Misc. No. 25-M-1992 as also F A O No 173-M of 1989.