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2015 DIGILAW 13 (ORI)

Jyoti Prakash Jena v. Kaveri Patra

2015-01-08

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT : S.K. Sahoo, J. The appellant Jyoti Prakash Jena in MATA No.54 of 2014 as well as the appellant Kaveri Patra in MATA No.59 of 2014 have challenged the common judgment and order dated 29.3.2014 of the learned Judge, Family Court, Cuttack passed in Civil Proceeding No. 777 of 2008 and Civil Proceeding No. 944 of 2008. The appellant Jyoti Prakash Jena (MATA No.54 of 2014) filed Civil Proceeding No.777 of 2008 under section 11 of the Hindu Marriage Act, 1955 for a declaration of his marriage with respondent Kaveri Patra as null and void and for compensation. Similarly the appellant Kaveri Patra (MATA No.59 of 2014) filed Civil Proceeding No.944 of 2008 under section 10 of the Hindu Marriage Act, 1955 for judicial separation against the respondent Jyoti Prakash Jena. The learned Judge, Family Court, Cuttack tried both the matters i.e., C.P. No.777 of 2008 and C.P. No.944 of 2008 analogously as the parties were common and the questions of law and facts involved therein were also identical. The learned Judge, Family Court vide impugned judgment and order dated 29.3.2014 invoking the provisions of Order VII Rule 10 of CPC directed for return of the petitions filed in C.P. No.777 of 2008 and C.P. No.944 of 2008 to the respective parties for presentation in the competent court of law. Since both the appeals arise out of a common judgment and order and the parties are also common and the questions of law and facts involved are identical, both the appeals were heard analogously. 2. It appears from the averments made in the appeal memos that the marriage between the parties was solemnized at Bhubaneswar on 22.1.2008 and they left the company of each other since 17.7.2008. During course of hearing, both the parties appeared in person with their respective counsels. In spite of sincere attempts made by their respective counsels as well as by this Court, they were not inclined to join the company of each other. Time was granted to both the parties and their respective counsels for further deliberations and to come out with a settlement. In spite of sincere attempts made by their respective counsels as well as by this Court, they were not inclined to join the company of each other. Time was granted to both the parties and their respective counsels for further deliberations and to come out with a settlement. Both the parties filed an application under Order 23 Rule 3 of C.P.C. read with section 107 C.P.C. to admit the compromise which has been lawfully entered into between them and to pass a decree of divorce declaring the marriage between them to be dissolved by such decree and for a direction that the compromise petition to form a part of such decree. 3. In the application filed by both the parties which is supported with affidavits, it is indicated that they have mutually deserted each other for a continuous period of more than six years immediately before the presentation of the application and they agree and admit that such continuous desertion entitles each of them to get a decree for divorce in terms of section 13(1)(i-b) of Hindu Marriage Act, 1955. It is further indicated in the application that the compromise is lawful and the parties agree for divorce without any coercion and out of their own volition. It is further indicated in the application that the joint motion is being made by both the husband and wife to decree both the appeals by granting a decree for divorce and annulling their marriage under section 13(1)(i-b) of Hindu Marriage Act. It is further stated in the application that the petition be otherwise treated as a joint petition under section 13(B) of Hindu Marriage Act, 1955 for dissolution of marriage. Both the parties have mentioned in the application that they have agreed that the husband shall pay a sum of Rs.7 lakhs (Rupees seven lakhs only) to the wife as permanent alimony and such payment shall be in three installments, the first Rs.2 lakhs by 16.1.2015, the second Rs.2.5 lakhs by 31.3.2015 and final Rs.2.5 lakhs by 8.5.2015. It is further indicated that the failure to pay any installment will amount to violation of Court’s order and the wife will be entitled to realize such agreed amount through Court. It is further indicated that the failure to pay any installment will amount to violation of Court’s order and the wife will be entitled to realize such agreed amount through Court. It is further indicated that the parties shall not proceed against each other in any other case relating to their marriage and the matrimonial dispute arising therefrom and they agreed that they shall not put forth any claim against each other in future. 4. Even though the prayer made by the parties before the learned Judge, Family Court, Cuttack was different in nature in as much as the husband prayed to declare the marriage as null and void and for compensation under section 11 of Hindu Marriage Act, 1955 and the wife prayed for judicial separation in terms of section 10 of Hindu Marriage Act, 1955 but in view of the lawful mutual agreement and compromise between the parties and filing of the application under Order 23 Rule 3 C.P.C read with section 107 C.P.C. and considering the prayer made in the application, for the ends of justice we admit the compromise between the parties as we are satisfied that the compromise have been lawfully entered into between the parties without any coercion and out of their own volition and the mutual consent has not been obtained by force, fraud or undue influence. Accordingly we dissolve the marriage between Jyoti Prakash Jena and Kaveri Patra which was solemnized on 27.1.2008 in accordance with Hindu rites by a decree of divorce in terms of the application under Order 23 Rule 3 C.P.C. and it is further directed that the compromise petition dated 6.1.2015 shall form the part of the decree. It is further directed that the parties shall remain bound by their statements. Both the appeals are disposed of and there shall be no order as to cost. I agree.