Suresh Prasad Sharma vs Smt. Janak Nandani

This first appeal is filed aggrieved by the judgment and decree dated 19.11.2015 passed in H.M. Act No. 324/2014Â by the Principal Judge, Family

Court, Satna, whereby the joint application filed by the appellant and respondent for divorce by mutual consent has been rejected and instead a decree

for judicial separation has been passed.

Brief facts leading to the present appeal are that the marriage between the appellant and respondent was solemnized in the year 1970-71

according to Hindu rites and rituals. It is an admitted fact that no issue has borne out of the said wedlock. The appellant on 25.08.2014 filed a petition

for divorce under Section 13 (1)(ib) of Hindu Marriage Act, 1955, on the ground of desertion by the respondent wife. However, on 08.01.2015 a joint

application under Order 23 Rule 3 of CPC was filed by the parties to the marriage stating that both of them have been living apart since 2003 and it is

not possible for them to live together in future also, so keeping in view their future they have decided to stay apart and want to compromise the matter

and prayed that decree of divorce be granted on the following terms and conditions:-

i. that the appellant shall pay one timesettlement of Rs.4,70,000/- and the same shall be paid by cheque No. 493851 drawn on The State Bank of India,

District Branch Collectorate, Satna, before the Court.

ii. that after 08.01.2015, the respondentshall not have any right over the movable and immovable property of the appellant nor will she file any claim in

future over the property of the husband and the order of maintenance granted earlier shall be treated as cancelled. iii. that the parties will bear their

own costs.

Pursuant to this compromise application said cheque was handed over and deposited in the saving account No. 33928012667 of respondent wife.

The learned judge had recorded the statement of respondent wife on oath on 29.01.2015 wherein she has clearly stated that she has entered into the

compromise on her own free will and without fear or pressure from any one and that she has received the amount of Rs.4,70,000/- as full and final

maintenance and shall not have any claim over the property of her husband in future and prayed that on the basis of compromise, decree of divorce be

granted.

The learned Judge on the basis of compromise application and evidence of respondent wife, directed that the petition be decided under Section 13-

B of the Act as petition for divorce by mutual consent and adjourned the matter for six months.

On 29.10.2015, the parties were called and the evidence of respondent wife was again recorded wherein she deposed:-

“vkt fnukad 29-10-2015 dsk vuk0 lk{kh dza01 Jherh tuduUnuh dks 'kiFk fnykbZ tkdj mldk ijh{k.k iqu% izkjaHk fd;k x;k& 01& eSa vius ifr ls rykd

pkgrh gWawA gekjs dksbZ larku ugha gS vkt esjs lkFk esjh cM+h cgu jkt dqekjh vkbZ gqbZ gSA eSa pkgrh gWwa fd esjk ifr nwljh 'kknh u djs ftl rjg

esjh ftUnxh dVs mlh rjg mldh Hkh dVsA esjs mij dksbZ ncko ugha gSA eSa iOn the aforesaid statement of respondent wife, the learned Judge did not grant a decree of dissolution of marriage but thought it proper to pass a

decree for judicial separation. Hence, this appeal.

It is contended by the learned counsel for appellant that once the respondent had filed an application for dissolution of marriage by compromise on

her own free will without fear or pressure from any one and accepted and received full and final maintenance of Rs.4,70,000/-, she has no right to put

any further condition on the appellant and that there was no occasion for the learned Judge to grant a decree of judicial separation. Hence, this appeal.

Having heard the learned counsel for the parties and on perusal of the record, we are of the considered opinion that this appeal deserves to be

allowed.

It is an admitted fact that after recording the evidence of respondent wife and on being satisfied of the genuineness of the compromise application

the court had directed on 20.02.2015, that the case be decided under Section 13-B of the Hindu Marriage Act and adjourned the matter for six months

as provided under Section 13-B.

Section 13-B of the Act provides that a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the

parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Act on the ground that they have

been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed that the

marriage should be dissolved and on the motion of both the parties made not earlier than six months after the date of presentation of the petition

referred to in sub-section (1) of the Act and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the

court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the

averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

It is thus clear that Section 13-B provides that a petition for dissolution of marriage has to be presented by the parties to a marriage together.

Section 13-B also provides for a cooling period of six months on the first motion in the event the parties change their mind during said period and

accordingly, if they change their mind the petition may be withdrawn. The only ground required for divorce by mutual consent under Section 13-B of

the Act is that the parties to marriage, have not been living together for a period of one and more year and have not been able to live together and

mutually agree to dissolve the marriage.

It is evident from the record that appellant and respondent wife filed a joint application for dissolution of marriage by compromise/mutual consent

on certain terms and conditions, which were fulfilled by the appellant and accepted by the respondent wife. Once the parties have filed an application

for divorce by compromise/mutual consent and have not withdrawn that application even after six months and the wife having accepted the terms and

conditions made under the application of compromise, had received the benefit, the compromise had become final and was required to be given effect

to.

Clause 2 of Section 13-B of the Act clearly stipulates that if the petition/application is not formally withdrawn and is kept pending, then on the date

when the court grants a decree, the court has a statutory obligation to hear the parties to ascertain their consent. When the respondent wife has stated

in clearterms that “eSa vius ifr ls rykd pkgrh gWawA esjs mij dksbZ ncko ugha gSâ€, the court on the basis of her new wish/desire that, “eSa

pkgrh gWwa fd esjk ifr nwljh 'kknh u djs ftl rjg esjh ftUnxh dVs mlh rjg mldh Hkh dVsA esjs mij dksbZ ncko ugha gSAâ€,cannot presume that she

had withdrawn from the consent. The trial Court has committed a gross error in converting the decree for dissolution of marriage by mutual consent

into a decree for judicial separation misconstruing the wishful thinking of respondent wife as her withdrawal from compromise.

Since the respondent wife has not withdrawn the compromise application for divorce and even in her re-examination has stated that she wants a

divorce from her husband. The decree for judicial separation passed by the learned court is not sustainable.

At this stage, it is submitted by the learned counsel for the respondent that the amount of Rs.4,70,000/- deposited in the fixed deposit for 10 years

by the learned court below yields a very low interest which is not enough for the respondent to sustain herself. Hence, it is directed that the

respondent wife, if in need of money shall be at liberty to move the Family Court for release of the fixed deposit.

For the reasons aforesaid, the judgment and decree passed by the Family Court is set aside. Resultantly, the appeal filed by the appellant stands

allowed.