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2014 DIGILAW 562 (PNJ)

Ashim Sethi v. Meena Sethi

2014-03-18

NAVITA SINGH, S.S.SARON

body2014
JUDGMENT : S.S. Saron, J. The statements of the parties at the second motion have been recorded in Court today. Both the parties have stated that they want divorce by mutual consent. 2. Learned counsel appearing for the respective parties submit that in view of the joint petition filed by the parties and their statements made at both the motions, the joint petition be accepted and the marriage between the parties be dissolved by a decree of divorce by mutual consent. 3. We have given our thoughtful consideration to the matter. 4. The marriage between the parties was solemnized at Pallavi Hotel, Panchkula according to Hindu rites and ceremonies on 10.02.2008. They initially enjoyed their married life and the marriage was consummated. After marriage, the parties went to Lucknow and took a house at Gomtinagar on rent in the first week of March, 2008. Thereafter, they shifted to another house and then they shifted to New Delhi on 1.08.2008 where they lived upto 30.06.2009. Thereafter they lived at Panchkula till 05.12.2009. On account of matrimonial disputes between the parties, Ashim Sethi (petitioner No. 1) on 13.01.2010 filed a petition (Regular Suit No. 90 of 2010) under Section 13 of the Hindu Marriage Act, 1955 ('Act'- for short) before the Principal Judge, Family Court at Lucknow. Meena Sethi (petitioner No. 2) on receipt of notice in the said petition, filed an application for transfer of the petition in the Hon'ble Supreme Court of India. The petition filed by petitioner No. 1 was transferred to the learned District Judge, Panchkula where it was registered as HMA No. 01. The learned Additional District Judge, Panchkula vide judgment and decree dated 28.05.2013 dismissed the petition of petitioner No. 1. Aggrieved against the same, petitioner No. 1 filed an appeal (FAO No. M-273 of 2013) before this Court. 5. Notice of motion was issued by this Court on 26.08.2013. Mr. Vivek Suri, Advocate for petitioner No. 2 who was on caveat accepted notice. Both the parties were open to an amicable settlement. It was stated that earlier mediation proceedings were carried out but had remained unsuccessful. The case was adjourned to 13.09.2013. The parties were asked to be present on the said date. 6. On 13.09.2013, the parties amicably settled their dispute. Both the parties were open to an amicable settlement. It was stated that earlier mediation proceedings were carried out but had remained unsuccessful. The case was adjourned to 13.09.2013. The parties were asked to be present on the said date. 6. On 13.09.2013, the parties amicably settled their dispute. Accordingly, CM No. 19356-CII of 2013 was filed by petitioner No. 1 in terms of Order VI Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the petition initially filed by him under Section 13 of the Act to that of a joint petition under Section 13-B of the Act. The said CM was allowed as prayed for on 13.09.2013. The statements of the parties at the first motion were also recorded on 13.09.2013. Both the parties stated that they want divorce by mutual consent. It was inter alia stated that there were differences between the parties and they were living separately since December, 2009. They were not able to pull along together. They had decided to dissolve their marriage by mutual consent. Ashim Sethi (petitioner No. 1), it was agreed shall pay an amount of Rs. 27 lacs in all to petitioner No. 2 towards past, present and future maintenance. Petitioner No. 1 tendered Rs. 5 lacs by cheque in favour of petitioner No. 2 drawn on State Bank of India, Panjab University, Chandigarh. All cases filed by either of the parties against the other, it was agreed, shall be withdrawn. FIR that had been lodged by petitioner No. 2 against petitioner No. 1, it was agreed, shall be got quashed. It was also agreed that FIR No. 945 dated 08.12.2009 registered at Police Station Hazratganj, District Lucknow for the offence under Section 380 IPC by petitioner No. 1 against petitioner No. 2, which was outcome of the matrimonial dispute shall be got quashed. Learned counsel for the parties state that the said FIR has since been quashed by the Lucknow Bench of the Allahabad High Court in case No. 2490 of 2011 decided on 12.04.2013. FIR No. 39 dated 29.01.2010 registered at Police Station, Sector-5, Panchkula has been quashed by this Court in Criminal Miscellaneous No. M-38812 of 2013 decided on 17.12.2013. There is no other case pending between the parties against each other. 7. FIR No. 39 dated 29.01.2010 registered at Police Station, Sector-5, Panchkula has been quashed by this Court in Criminal Miscellaneous No. M-38812 of 2013 decided on 17.12.2013. There is no other case pending between the parties against each other. 7. The parties at both the motions have stated that their marriage be dissolved by a decree of divorce by mutual consent. They have been living separately since December, 2009. Petition for divorce was initially filed on 13.01.2010. However, it would not disentitle the petitioners for grant of divorce on the ground that a period of one year of living separately has not lapsed immediately before the filing of the petition as the joint petition was filed in this Court on 13.09.2013 by which time a period of three years and 10 months of the parties living separately had lapsed. For filing a petition for grant of divorce by mutual consent in terms of Section 13-B of the Act, one of the requirements is that the parties have been living separately for a period of one year or more before presentation of the petition. An amendment normally relates back to the date when the petition was filed. The amendment if it is taken in this manner, the petition for grant of divorce by mutual consent may not be maintainable as a period of one year or more had not lapsed by 13.01.2010 when the petition was initially filed. The Hon'ble Supreme Court in Sampath Kumar v. Ayyakannu and another, AIR 2002 SC 3369 has, however, observed as follow :- "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 observations in Siddalingamma and another v. Mamtha Shenoy, (2001) 8 SCC 561 )." 8. A Division Bench of this Court in Sanjiv Kumar v. Smt. Meena, FAO No. 9-M of 2004 decided on 01.03.2013 held as follows :- "It is quite common that parties to a matrimonial dispute after contest at the initial trial Court stage enter into a settlement at the appellate stage. Very often a joint petition in terms of Section 13-B of the Act for seeking divorce by mutual consent is filed at the appellate stage by amending the original/initial petition. At times a period of one year or more of the parties living separately before presentation of the initial petition for divorce does not lapse when the said initial petition had been filed. If the doctrine of relation back of the amended petition is applied in such cases and it is taken that the amendment will relate back to the date of filing the original/initial petition, the joint petition for divorce by mutual consent would not be maintainable in view of the bar created in Section 13-B of the Act. To obviate such an eventuality, the amended joint petition for divorce by mutual consent should be taken to be filed and effective from the date it is filed and the doctrine of relation back to the date of filing the original/initial petition would not apply. This is necessary so as to enable the litigating parties to settle and put a quietus to their matrimonial dispute to which they may have been litigating for a long period of time and not be non suited by a technical defect of the parties not living separately for a period of one year or more before presentation of the petition for divorce. During the trial of the case at the initial trial Court stage and at the appellate stage, the parties are normally living separately and a period of one year or more lapses in the litigation. Therefore, the amended joint petition seeking divorce by mutual consent that is filed at the appellate stage is to be taken to have been filed on the date it is presented and the period for the litigating parties of living separately for a period of one year or more is to be reckoned from the said date of filing the joint petition for divorce by mutual consent. The counting of period for the parties living separately for a period of one year more being taken from the date of filing the amended petition would even be necessary to maintain the sanctity of the judgment and decree that is ultimately passed in a matrimonial proceedings so that it is not got invalidated on the technical ground that there was an initial defect in the presentation of the petition of the parties not living separately for a period of one year or more." 9. In view of the above, it is to be taken that the amendment which was allowed on 13.09.2013 and the amended petition taken on record shall deemed to be effective from the date the joint petition was filed i.e. on 13.09.2013. The joint petition that was filed by the parties being taken to have been filed on 13.09.2013, by which date the parties had admittedly been living separately for more than one year. All other proceedings between the parties have been terminated. The parties had decided to part ways amicably. An amount of Rs. 27 lacs has been paid by petitioner No. 1 to petitioner No. 2 which has been accepted by her. The same is towards the past, present and future permanent alimony of petitioner No. 2. 10. In view of the fact that the parties have mutually decided to part ways amicably, it would be just and expedient to allow the joint petition of the parties and pass a decree of divorce between the parties by mutual consent. 11. Accordingly, the joint petition (CM No. 19357-CII of 2013) seeking dissolution of the marriage between the parties by a decree of divorce by mutual consent is allowed and the marriage between the parties is dissolved by a decree of divorce by mutual consent. 12. In view of the joint petition being allowed, learned counsel for petitioner No. 1-Ashim Sethi submits that the appeal filed by him has been rendered infructuous. 13. Accordingly, the appeal (FAO No. M-273 of 2013) is dismissed as having been rendered infructuous. The parties shall bear their own costs. Decree sheet be prepared.