Pankaj Wadhwa vs Purnima Wadhwa

S.S. Saron, J.

C.M. No. 13974-CH of 2014

CM has been filed seeking condonation of delay of 33 days in filing the appeal.

Notice of CM.

Mr. Anhul Singh, Advocate, who is present in Court, accepts notice on behalf of the respondent-Purnima Wadhwa. Vakalatnama filed by him today in Court is taken on record.

Heard counsel for the parties on the CM seeking condonation of delay in filing the appeal.

The appeal has been filed against the order dated 09.05.2014 passed by the learned District Judge, Family Court, Faridabad whereby the joint petition filed by the parties for grant of divorce by mutual consent has been dismissed at the stage of second motion.

It is submitted that the applicant-appellant could not file the appeal in time as the applicant-appellant was under the impression that the appeal could be filed within 90 days from the date of impugned order. Besides, there were summer vacations in the High Court during the month of June, 2014. Therefore, the applicant-appellant engaged his counsel in the first week of July when the High Court re-opened after summer vacations. The CM is supported by an affidavit of the appellant.

Learned counsel for the respondent has stated that he has no objection to the delay being condoned.

Therefore, in the facts and circumstances, it would be just and expedient to hear the case of the applicant-appellant on merit rather than non-suiting him on a technical consideration of delay in filing the appeal.

Accordingly, the CM is allowed and delay of 33 days in filing the appeal is condoned.

F.A.O. No. 4964 of 2014

Notice of motion.

Mr. Anhul Singh, Advocate, who is present in Court, accepts notice on behalf of the respondent-Purnima Wadhwa.

Heard learned counsel for the parties.

The appeal has been filed by the appellant-husband against the order dated 09.05.2014 passed by the learned District Judge, Faridabad whereby the joint petition u/s 13-B of the Hindu Marriage Act, 1955 (''Act''-for short) for dissolution of the marriage between the parties by a decree of divorce by mutual consent has been dismissed.

The marriage between the parties was solemnised according to Hindu rites and ceremonies at Faridabad on 17.02.2006. The parties had a son from the marriage, namely, Vardaan Wadhwa who was born on 27.07.2007. Due to temperamental differences between the parties, they decided to seek divorce by mutual consent. The parties filed a joint petition (Annexure A. 1) besides their joint statements (Annexure A. 2) were recorded by the learned District Judge, Family Court, Faridabad. The terms and conditions (Annexure A. 3) for settlement of the dispute were recorded. The case was adjourned for second motion vide order dated 23.10.2013 (Annexure A. 4) to 25.04.2014.

The case was taken up by the learned District Judge, Family Court, Faridabad on 09.05.2014. The learned District Judge observed that there was a dispute between the parties regarding the terms and conditions of settlement. They had been arguing in Court for the last one hour. On request of Purnima-respondent and her counsel, the petition was dismissed.

Aggrieved against the same, the appellant has filed the present appeal. Along with the appeal, affidavit of Purnima-respondent deposed on 05.07.2014 has been filed as Annexure A. 5. It is inter-alia deposed by Purnima-respondent that she and her husband Pankaj Wadhwa (appellant) were present in Court and there were some arguments between them regarding visitation rights of Pankaj Wadhwa (appellant) to visit his son Vardaan Wadhwa. The arguments got prolonged for some time as there was some difference of opinion. The deponent (respondent) was provoked on this account and she requested the learned Court to dismiss the petition u/s 13-B of the Act and the petition was dismissed.

It is submitted that the said request was made by the deponent (respondent) under provocation and actually the same would not amount to withdrawal of consent by the deponent for the purpose of the petition u/s 13-B of the Act. It is stated that respondent is ready and willing to seek divorce from her husband Pankaj Wadhwa (appellant) by way of mutual consent as envisaged by the provisions of Section 13-B of the Act. The terms and conditions mentioned in the settlement deed are Ex. C1 (Annexure A. 3).

In view of the said affidavit (Annexure A. 5), both learned counsel for the parties pray that order dated 09.05.2014 of the learned District Judge, Family Court, Faridabad be set aside and the statements of the parties be recorded at the second motion for the purpose of divorce by mutual consent.

After giving our thoughtful consideration to the matter, we are satisfied that the order dated 09.05.2014 passed by the learned District Judge, Family Court, Faridabad be set aside as the respondent-wife is now ready to give her statement at the second motion to the effect that the marriage between the parties be dissolved by mutual consent. She has filed her affidavit in this regard as Annexure A. 5 whereby she has deposed that she had requested the learned Court below to dismiss the petition u/s 13-B of the Act as she was provoked on account of arguments between her and her husband regarding the visitation rights of their minor son, however, now she is ready to make a statement at second motion for grant of divorce by mutual consent. The intention of the respondent is to separate from her husband. Due to sudden intemperate behaviour and in a huff, she stated that the joint petition for divorce be dismissed and her counsel reiterated her stance. In fact the intention of both the parties appears to be to part way amicably.

In these circumstances, it would be just and expedient that the order dated 09.05.2014 passed by the learned District Judge, Family Court, Faridabad is set aside and the case is remitted to the learned Court below for recording the statements of the parties at the second motion.

Accordingly the appeal is allowed and the impugned order dated 09.05.2014 passed by the learned District Judge, Family Court, Faridabad is set aside and the case is remitted to the learned trial Court for recording statements of the parties at the second motion. The parties shall appear before the learned District Judge, Family Court, Faridabad on 12.08.2014 and the learned trial Court shall proceed with the case from the stage of recording statements at the second motion.