Smt. Vimlesh vs Sh. Navin Prakash

V.B. Gupta, J.—The appellant/wife has filed present appeal u/s 28 of the Hindu Marriage Act, 1955 (for short as "Act") read with Section 96, Order XLI Rules 1 & 2 and Section 151 CPC for setting aside of the decree and judgment dated 20th February, 1998 passed by the Addl. Sessions Judge, Delhi in HMA case No. 565/1990 dissolving the marriage between the parties by a decree of divorce.

During the pendency of the present appeal, a joint application under Order 23 Rule 3 read with Section 151 CPC has been filed by the parties stating that the parties to the instant appeal have settled all their claims and have decided to part with amicably and agreed for divorce by mutual consent in terms of the compromise arrived at between the parties. The terms of settlement/agreement are enumerated as under:

i) The impugned judgment and decree dated 20.2.1998, passed by the Ld.ADJ, Delhi in HMA case No. 565/1990 be modified and substituted by a decree of divorce by mutual consent u/s 13B(1) & (2) of the Hindu Marriage Act. All allegations leveled by the parties against each other are treated to have been withdrawn.

ii) That it is further agreed between the parties that the respondent-husband will pay to the appellant-wife a sum of Rs. 2,00,000/-(Rs. Two Lakhs only) as full and final settlement of permanent alimony and claims of whatsoever kind against him. It is further agreed that the said amount will be tendered and given to the appellant before this Hon''ble Court at the time of recording of statement of the parties vide demand draft. After the payment of the aforesaid amount of Rs. 2,00,000/-(Rs. Two Lakhs only) the appellant-wife will be left with no other claims whatsoever against the respondent-husband and all their disputes pertaining to and arising from the instant marriage stands satisfied between the parties to the compromise.

iii) That at the instance of the appellant a NCR being No. 315/03, has been registered against the respondent U//s 352/504 IPC, at Police Station Baradari, Bareilly, U.P. But in respect thereof no further action has been taken by the appellant and the cases has been closed. The appellant undertakes not to pursue the said case. The parties herein further agreed that there is no other case pending between them and any other case, if any, filed by them against each other stood withdrawn and no party shall engage in litigation in future against each other pertaining to and arising from the instant marriage and shall not damage each others reputation.

iv) That the compromise/settlement arrived at between the parties shall be treated as part and parcel of the decree of divorce by mutual consent. The present appeal be disposed of in above terms.

It has been further stated in the terms of compromise/settlement:

That both the parties voluntarily with their own free will and without any undue influence, force and coercion has agreed upon to dissolve their marriage by mutual consent as per the terms and conditions stated above. The instant application is not collusive. The parties are living separately since 18.10.1989. There is no possibility of re-conciliation. The parties to the instant appeal are pursuing the instant matrimonial case since 1990 and have now decided to seek divorce by mutual consent. There is no legal impediment in allowing the application. The terms of the agreement/settlement stated above are binding on the parties. The statutory period of six months may be waived and the application may be allowed.

Accordingly, it is prayed that the impugned judgment and decree passed by the trial court may be modified and substituted by a decree of divorce by mutual consent u/s 13B (1) & (2) of the Act, making terms of the settlement as part of the decree.

Both the parties have also filed a joint petition u/s 13B(2) of the Act for dissolution of the marriage by a decree of divorce by way of mutual consent and along with that, an application has also been filed jointly by both the parties for waiving of the period of six months for moving the second motion.

Statements of both the parties have been recorded.

Parties in this case was married on 8th December, 1982 and have been living separately since 18th October, 1989. Both the parties have settled the inter se dispute between each other arising out of the marriage and as per the ettlement/agreement,respondent/husband has agreed to pay a sum of Rs. 2 lacs as full and final settlement of permanent alimony and claim of whatsoever kind to the appellant/wife. The appellant/wife has received a demand draft for a sum of Rs. 2 lacs and as per the settlement of the parties, the dispute pertaining to and arising out of the marriage, stands satisfied between them. It is also stated by both the parties, that in view of the settlement mentioned in CM No. 5338/08, the impugned judgment and decree dated 20th February, 1988 passed in HMA case No. 565/1990 by the Addl. District Judge, Delhi may be modified and substituted by a decree of divorce by mutual consent u/s 13B (1) & (2) of the Act by making terms of the settlement as part of the decree. Further, the consent to the joint petition, has been made voluntarily by both the parties.

Having perused the record of this case, the terms of settlement/agreement and the statement given by both the parties, I am satisfied that the marriage between the parties has broken down irretrievably and the parties are living separately since 1989.

So, with a view to restore good relationship and to put a quietus to all the litigations between the parties and not to leave any room for future litigation, so they may live peacefully here after, and on the request of the parties, in the interest of justice, I allow the application for divorce by mutual consent filed u/s 13(B) of the Act and also wave the period of six months and declare that the marriage solemnized between the consenting parties on 8th December, 1982 is hereby dissolved and they are granted decree of divorce by way of mutual consent.

The terms of settlement as mentioned in the joint application under Order 23 Rule 3 read with Section 151 CPC (CMP No. 5338/08) shall be part of the decree.

The decree sheet be prepared accordingly.

Accordingly, the present appeal stands disposed of.