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2017 DIGILAW 1753 (RAJ)

Ram Pal Karigar v. Chandra Mohini

2017-08-08

AJAY RASTOGI, ASHOK KUMAR GAUR

body2017
JUDGMENT : 1. Instant misc. appeal is directed against the judgment & decree dt. 27.08.2011 rejecting application filed by the appellant-husband seeking divorce u/Sec. 13 of the Hindu Marriage Act, 1955. 2. The brief facts which emerges from the record are that their marriage was solemnized on 21st April, 1996 according to Hindu rites & customs at Jaipur and from this wedlock, three children were born, two daughters and one son. All the three now have attained the age of majority. Both the daughters got married and son is residing with the respondent-wife, has done his graduation and is in search of employment. 3. On the basis of the pleadings of the parties, three issues were framed. We consider it appropriate to quote the issues framed on the basis of the pleadings of the parties: ^^1- D;k vizkFkhZ;k us fookg ds vuq"Bkiu ds i’pkr~ izkFkhZ ds lkFk ;kfpdk esa of.kZr rF;ksa ds ifjis{; esa Øwjrk dk O;ogkj fd;k gS\ 2- D;k vizkFkhZ;k us izkFkZuk i= izLrqr djus ls iwoZ nks o"kZ dh dkykof/k rd izkFkhZ dk vfHkR;tu dj j[kk gS\ 3- D;k izkFkhZ vizkFkhZ;k ds fo:) fookg foPNsn dh fMØh izkIr djus dk vf/kdkjh gS\ 4- vuqrks"k\** In support of defence, statements of PW-1 Ram Pal, PW-2 Lal Chand & PW-3 Ramdas and so also NA-1 Chandra Mohini, NA-2 Anant Sagar & NA-3 Krishna Bihari were recorded. Although a finding has been recorded by the ld. Family Court holding that the appellant has failed to prove/establish the issues either of cruelty or desertion for obtaining a decree of divorce under Section 13 of the Hindu Marriage Act under the impugned judgment & decree dt. 27.08.2011. 4. During pendency of the proceedings, the matter was sent for mediation and both the parties re-visited their pleadings and took assistance from their well-wishers and jointly arrived to a conclusion that as they are living separately since 2003, it will not be possible for them to re-unite together, moreso, when their children are well settled and both are in employment. During pendency of the proceedings, the matter was sent for mediation and both the parties re-visited their pleadings and took assistance from their well-wishers and jointly arrived to a conclusion that as they are living separately since 2003, it will not be possible for them to re-unite together, moreso, when their children are well settled and both are in employment. When the matter was sent for mediation, the Mediator also got the matter settled amicably by the consent of the parties on the following terms on 18.07.2017 : ^^1- i{kdkjku~ fdlh Hkh lwjr esa lkFk jgus dks rS;kj ugha jgs gS rFkk nksuksa i{kdkj tfj;s jkthukek vius fookg fnukad 21-04-1986 ds fookg ds foPNsn fd fMØh pkgrs gSA 2- nksuksa i{kdkjku~ vkfFkZd :i ls lEiUu jgs gS vkSj ijLij ,d nwljs ij fuHkZj ugh gS vkSj viuk Hkj.k iks"k.k djus ij l{ke gSA Jherh pUnzeksfguh jkT; lsok esa deZpkjh fu;qDr gS rFkk vius Hkj.k iks"k.k ds fy;s dksbZ Hkh [kpkZ ugha pkgrh gS vkSj nksuksa i{kdkjku~ esa ;g lgefr Hkh jgh gS fd os Hkfo"; esa mDr isVs ,d nwljs ls fdlh izdkj ds [kpsZ dh ekax ugha djsaxsA 3- i{kdkjku~ ds fookg ls rhu larku nks 'kknh’kqnk iqf=;ka ,oa ,d iq= jgk gS] tks rhuksa gh O;Ld larku jgh gSA** 5. Both the parties present before this Court, agreed in the terms which has been referred in report of the Mediator dt. 18.07.2017, extract whereof has been referred by us in the present order, as indicated above. 6. That apart, misc. application has been filed jointly by the parties and it has been stated that although the issue of desertion could not have been established from the material on record but the respondent-wife has agreed that as they are living separately since 2003, she has no objection if the appellant-husband is granted decree of divorce on establishing the issue No.2 of desertion in favour of the appellant-husband. 7. Spouse are fully mature and can certainly take a decision which is in their interest. Even before this Court also, both are agreed to seek the decree of divorce and the respondent-wife has agreed that decree may be granted deciding issue No.2 of desertion in favour of the appellant-husband. 8. After having heard the counsel for the parties and taking note of their consent, which has been recorded by the Mediator in its report dt. Even before this Court also, both are agreed to seek the decree of divorce and the respondent-wife has agreed that decree may be granted deciding issue No.2 of desertion in favour of the appellant-husband. 8. After having heard the counsel for the parties and taking note of their consent, which has been recorded by the Mediator in its report dt. 18.07.2017 and so also the fact that the respondent-wife has agreed to accept the ground of desertion, we decide the issue no.2 in favour of the appellant-husband. Thus, the case has been made out for grant of decree of divorce on issue no.2 of desertion being decided in favour of the appellant. 9. Consequently, the appeal succeeds and is allowed. The issue no.2 of desertion is decided in favour of the appellant and accordingly, the judgment & decree of the Family Court No.2, Jaipur dt. 27.08.2011 is quashed and set aside and the appellant-husband is entitled for grant of decree of divorce. Their marriage solemnized on 21.04.1986 is accordingly dissolved. The Registry may prepare the decree accordingly. No cost.