Narinder Pal Singh vs Neetu

S.S. Saron, J.—The marriage between the petitioners was solemnized according to Sikh Rites and Ceremonies at Jalandhar on 21.11.2007.

After marriage they cohabited as husband and wife. They had no child from their marriage. During marriage matrimonial dispute arose between the

petitioners and Narinder Pal Singh (petitioner No. 1) on 18.05.2009 filed a petition against his wife Neetu (petitioner No. 2) seeking dissolution of

the marriage between the parties on the ground of cruelty. The learned Additional District Judge, Jalandhar after considering the evidence and

material on record allowed the petition for divorce filed by Narinder Pal Singh (petitioner No. 1) vide judgment and decree dated 27.05.2011 and

dissolved the marriage between the parties by a decree of divorce. Neetu (petitioner No. 2) aggrieved against the said judgment and decree filed

the present appeal (FAO No. M-186 of 2011). During the pendency of the appeal, the parties entered into a settlement and decided to part ways

amicably.

CM No. 5981-CII of 2013 was initially filed by the appellant seeking withdrawal of the appeal. However, deliberations were carried out and

the parties agreed to file a joint petition for divorce in terms of Section 13-B of the Hindu Marriage Act, 1955 (''Act'' - for short) for dissolving

their marriage by a decree of divorce by mutual consent. Accordingly a joint petition was filed in Court on 18.03.2013 which was taken on record

and was ordered to be numbered by the Registry. The joint petition for divorce has been numbered as CM No. 8274-CII of 2013. It was

ordered that the said joint petition that had been filed be treated as a petition filed on 18.03.2013, that is, the date it was filed. This was so ordered

as the parties had been living together till April, 2009 and the petition for divorce was initially filed by Narinder Pal Singh (petitioner No. 1) on

18.05.2009. Therefore, in case the petition was amended and taken into account from the date of institution of the original petition, the statutory

period of one year for the parties to the petition to be living separately before filing the joint petition for divorce would not have lapsed. The parties

have been living separately from April 2009 and till the filing of the initial petition on 18.05.2009, a period of one year had not lapsed, which is one

of the requirements for the filing of a joint petition for divorce by mutual consent. On the statements of the learned counsel for the parties, the

conversion of the original petition that was filed to that of a petition u/s 13-B of the Act was treated to be instituted on the date it was filed in this

Court i.e. on 18.03.2013. In fact the Hon''ble Supreme Court in Sampath Kumar Vs. Ayyakannu and Another, has observed as follows:-

An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of

pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the

amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought

before the Court on the date on which the application seeking the amendment was filed (See observation in Siddalingamma and Another Vs.

Mamtha Shenoy,

In respect of matrimonial disputes it is quite common that the parties after contest at the initial trial Court stage, enter into a settlement at the

appellate stage and file a joint petition seeking divorce by mutual consent. Such a joint petition seeking divorce by mutual consent at the appellate

stage by amending/converting the original petition that had been filed is to be taken to have been instituted on the date it is filed. In case this is not

done, at times, the period of one year required for the parties to be living separately before filing a joint petition in terms of Section 13-B of the Act

does not lapse. In such circumstances one of the requirements for filing the joint petition seeking divorce by mutual consent remains incomplete.

Accordingly, the joint petition was taken to have been filed on 18.03.2013 by which date the parties had admittedly been living separately for a

period of one year or more so as to entitle them to file a joint petition u/s 13-B of the Act.

The statements of the parties at the first motion were recorded on 18.03.2013. Both the parties inter alia stated that they want divorce and they

had entered into a compromise. The original compromise Ex. C1 was tendered in evidence by both the parties. Each page of the compromise was

signed by them. It was inter alia agreed in terms of the compromise that there was no hope of reconciliation in the near future and taking into

consideration the young age of both the parties and hope of fresh resettlement, respectable and common relatives from both the parties had

intervened and prevailed upon them to put to an end to the ongoing litigation and live peacefully without intervention. Narinder Pal Singh (petitioner

No. 1) had undertaken to pay to Neetu (petitioner No. 2) and minor son of the parties namely Samrat a lumpsum amount of Rs. 5 lacs each for

their past, present and future maintenance. Neetu (petitioner No. 2) had undertaken to withdraw her petition u/s 125 of the Code of Criminal

Procedure and also to withdraw her complaint u/s 12 of the Protection of Women from Domestic Violence Act and also CMM No. 97 of 2011

for grant of maintenance pendente lite. Both the parties had further agreed to receive their belongings from each other and on receipt of their

belongings and on receipt of the lumpsum maintenance as detailed above, none of the parties it was agreed shall file any civil, criminal or any other

proceedings qua their belongings, maintenance and any other right or claim qua their marriage in any manner in any Court in future against each

other; besides, they would not interfere in the personal life of each other and both the parties would be at liberty to live their personal life in any

manner they like.

After recording the statements of the parties at the first motion, the case was adjourned for today for recording the statements of the parties at

the second motion. Both the parties have appeared and their statements on oath have been recorded. They both have stated and reiterated that

they want divorce. Narinder Pal Singh (petitioner No. 1) has tendered Rs. 10 lacs by way of demand drafts which have been received by Neetu

(petitioner No. 2). It has been agreed that out of the sum of Rs. 10 lacs that has been received by Neetu (petitioner No. 2), an amount of Rs. 5

lacs would be deposited in a fixed deposit receipt in a bank in the name of the minor Samrat and she would be entitled to the interest of the same.

The amount shall remain deposited till the minor Samrat attains the age of 18 years. Some belongings like two gold rings, one pair of tops and one

wrist watch were also handed over by Narinder Pal Singh (petitioner No. 1) to Neetu (Petitioner No. 2); besides, Rs. 10,000/- as maintenance

pendente lite for the month of September was also handed over to her, which she has received. Narinder Pal Singh (petitioner No. 1) submitted

that some articles of his like two gold rings, one pair of tops and one wrist watch are with Neetu (petitioner No. 2) which he gives up and does not

make any claim for the same. He has also undertaken that some articles like almirah, bed, one ''petti'' (box) and one washing machine which are

with him, he would send the same to Neetu (petitioner No. 2) within 15 days. The minor son of the parties namely Samrat is to remain in the

custody of Neetu. The parties now have no claim of any kind against each other. Both of them have stated that their marriage be dissolved by a

decree of divorce.

We are satisfied that the parties have bonafidely agreed to dissolve their marriage. It is submitted by learned counsel for the parties that the

appeal (FAO No. M-186 of 2011) be allowed and judgment and decree of the trial Court be set aside as divorce had been granted in the petition

against which the said appeal had been filed but now divorce be granted in the joint petition (CM No. 8274-CII of 2013) filed by the parties. We

are in agreement with the said contentions of the learned counsel for the parties as the parties have mutually decided to part ways amicably and

dissolve their marriage by a decree of divorce by way of mutual consent. Accordingly, the appeal (FAO No. M-186 of 2011) is allowed and the

judgment and decree dated 27.05.2011 passed by the learned Additional District Judge, Jalandhar is set aside and the petition for divorce filed by

Narinder Pal Singh (petitioner No. 1) at Jalandhar is dismissed. CMM No. 97 of 2011 for grant of maintenance pendente lite with the appeal

being disposed of no longer survives. However, the joint petition (CM No. 8274-CII of 2013) for divorce filed by the parties in this Court on

18.03.2013 is allowed and the marriage between the parties is dissolved by a decree of divorce by mutual consent in terms of Section 13-B of the

Act. The parties shall remain bound by the compromise Ex. C1. There shall be no order as to costs. Decree-sheet be prepared.