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Rajasthan High Court · body

2017 DIGILAW 2617 (RAJ)

Nisha Verma v. Ram Panwar

2017-11-29

AJAY RASTOGI, DEEPAK MAHESHWARI

body2017
ORDER : Ajay Rastogi, J. Instant misc. appeal is directed against the order dated 4-12-2012 passed by Ld. Family Court dismissing application jointly filed by the parties under section 13B of Hindu Marriage Act, 1955 ("Act, 1955") seeking decree of divorce by mutual consent primarily for the reason that since 18 months have expired from the date of filing application and no orders could be passed on the joint application filed under section 13B of the Act, 1955 seeking decree of divorce by mutual consent. 2. Notices of the present appeal were issued on 20-5-2013 and as per office report dated 19-8-2017 notices upon the respondent were duly served but no-one put in appearance on his behalf and taking note thereof, looking to the nature of controversy we were of the view that it may be in the interest of justice to dispose of the matter finally at this stage as reveals from the order dated 19-9-2017 and posted the matter for 11-10-2017 and thereafter also when the matter came up before the Court on 1-11-2017 no-one put in appearance on behalf of the respondent despite service. 3. Brief facts relevant for the present purpose are that marriage of the appellant with the respondent came to be solemnized according to Hindu rites & customs on 16-2-2009 and it was specifically stated by both of them in their joint application filed on 29-9-2010 under section 13B of the Act,1955 that they failed to prolong their matrimonial relation to their expectation and are living separately since 23-8-2009 and indisputably after a period of one year of their separation joint application was filed under section 13B and satisfaction was recorded of the Presiding Officer and posted the matter to be listed after expiry of the cooling period of 6 months as contemplated under section 13B(2) of the Act, 1955. 4. The matter thereafter came up before the Ld. 4. The matter thereafter came up before the Ld. Family Court on 14-3-2012 and on the said date both the parties appeared and their statements were recorded as AD1 Sh.Ram Panwar & AD2 Smt. Nisha Verma & both of them corroborated the fact referred to in their joint application filed under section 13B of the Act, 1955 and recorded their consent with free will & without any undue influence and prayed to dissolve their marriage by mutual consent and we consider it appropriate to quote extract of the statements of the parties recorded before the Ld. Family Court on 14-3-2012 which reads as under :- ,0Mh0 1 Jhjke iokj 'kiFk fnykbZ xbZ esjk fookg fnuakd 16-02-2009 dks fgUnq jhfr fjoktksa ds vuqlkj fu'kk oekZ ds lkFk nqxkZiqjk] rglhy lkaxkusj] ftyk t;iqj esa lEiUu gqvk FkkA fookg ds ckn ge nksuksa lat; uxj] >ksM+okM+k] t;iqj esa ek= 6 ekg rd ifr iRuh ds :i esa lkFk jgs] fookgksijkar gekjs e/; oSpkfjd erHksn iSnk gks x, vkSj gekjk ifr iRuh ds :i esa lkFk jgdj nkEiR; thou O;rhr djuk lEHko ugha gqvk] rc geus fnuakd-----nwljs ls vyx jg jgs gS] bl nkSjku gekjs e/; nkEiR; lEcU/kksa dh iquLFkkZiuk ugha gqbZ gSA gekjs e/; ngst] lkeku] L=h/ku o LFkk;h Hkj.k&iks"k.k ds ckcr fdlh izdkj dk dksbZ fookn ugha gS lHkh fookn vkilh lgefr ls r; dj fy, gS] gekjs e/; vU; fdlh U;k;ky; esa dksbZ izdj.k yfEcr ugha gS] lHkh fooknksa dk fuLrkj.k ikjLifjd lEefr ds vk/kkj ij dj fy;k x;k gSA izkFkZuk i= is'k djus esa fdlh izdkj dh nqfHkZlaf/k ;k NydiV ugha gS] LorU= lgefr ls izkFkZuk i= is'k fd;k x;k gSa esjs }kjk izkFkhZ;k dks LFkk;h Hkj.k&iks"k.k gsrq ,d eq'r :i ls 1]81]000 :0 dh vnk;xh dj nh xbZ gS] vc fdlh izdkj dk ysunsu cdk;k ugha gSA gekjs oSokfgd lEcU/kksa ls dksbZ lUrku mRiUu ugha gqbZA gekjs e/; iSnk gqbZ dVqrk ds dkj.k gekjk ifr&iRuh ds :i esa ,d lkFk jguk lEHko ugha gksus ds dkj.k ge vkilh lgefr ls fookg&foPNsn dh fMØh izkIr djuk pkgrs gSA vk[kjh ckj ge nksuksa lat;uxj] >ksVokM+k] t;iqj esa ifr iRuh ds :i esa lkFk&lkFk jgs FksA ,0Mh0 2 ¼Jherh fu'kk oekZ½ 'kiFk fnykbZ xbZ esjk fookg fnuakd 16-02-2009 dks fgUnq jhfr fjoktksa ds vuqlkj Jhjke iokj ds lkFk nqxkZiqjk rglhy lkaxkusj ftyk t;iqj esa lEiUu gqvk FkkA fookg ds ckn ge nksuksa ek= N% ekg rd ifr iRuh ds :i esa lkFk jgs] gekjs oSokfgd lEcU/kksa ls dksbZ lUrku mRiUu ugha gqbZA nkEiR; thou O;rhr djus ds nkSjku gekjs e/; oSpkfjd erHksn iSnk gks x, vkSj gekjk crkSj ifr iRuh lkFk jgdj nkEiR; thou O;rhr djuk lEHko ugha jgk] rc geus fnuakd 23-08-2009 ls ,d nwljs ls i`Fkd~ fuokl djuk izkjEHk dj fn;k rc ls ge nksuksa fujUrj ,d nwljs ls vyx&vyx fuokl dj jgs gS] gekjs e/; ngst] lkeku] L=h/ku o LFkk;h Hkj.k&iks"k.k ds ckcr fdlh izdkj dk dksbZ fookn 'ks"k ugha gS lHkh fooknksa dk fuLrkj.k vkilh lgefr ls dj fy;k x;k gS] gekjs e/; vU; fdlh U;k;ky; esa dksbZ izdj.k yfEcr ugha gS] izkFkhZ Jhjke iokj }kjk eq>s ,d eq'r Hkj.k&iks"k.k ds :i esa 1]81]000@& :0 dh vnk;xh dh tk pqdh gS] vc fdlh izdkj dk ysu&nsu cdk;k ugha gS] gekjs e/; vU; fdlh U;k;ky; es dksbZ izdj.k yfEcr ugha gS] lHkh fooknksa dk fuLrkj.k vkilh lgefr ls dj fy;k x;k gSA izkFkZuk&i= is'k djus esa fdlh izdkj dh nqfHkZlaf/k ;k NydiV ugha gS LorU= lgefr ls izkFkZuk&i= is'k fd;k x;k gSA gekjs e/; iSnk gqbZ dVqrk ds dkj.k ge vkilh lgefr ls fookg&foPNsn dh fMØh izkIr djuk pkgrh gSA We find no reason for the Ld. Family Court to post the matter for further hearing, more so when the consent was tendered by both the parties in their statements recorded on 14-3-2012 order could have been passed granting decree of divorce by mutual consent on the said date itself and it was posted for 17-3-2012 and the order-sheet reveals that the respondent husband on that date had shown some reservations and that appears to be the reason for which the matter was adjourned on different dates and indisputably during the course of time 18 months expired and the Presiding Officer was of the view that he has now become functous officio and order could not be passed and accordingly dismissed the application filed under section 13B of the Act, 1955 under order impugned dated 4-12-2012. 5. From the record it reveals that the application under section 13B (1) of the Act,1955 was jointly filed by the parties and as regards the satisfaction to be recorded as envisaged under section 23 of the Act, 1955 is concerned, that requirement was also fulfilled, more so when the statements were recorded as AD1 Sh. Ram Panwar & AD2 Smt. Nisha Verma and even if the parties restrained to appear & failed to record their presence thereafter there appears no reason not to grant decree of divorce as requested on their own consent more so when it was never the case of either party that the consent which has been tendered in their joint application filed under section 13B & recorded in their later statements after expiry of cooling period on 14-3-2012 in no manner was obtained either by fraud or undue influence and that is one of the requirement under section 23 (bb) of the Act,1955 and once compliance has been made we find no reason for the Ld. Family Court to defer the matter after their statements compliance of the mandate under section 13B has been fulfilled to its satisfaction become entitled for decree of divorce as prayed for and the order passed by the ld. Family Court impugned dated 4-12-2012 rejecting their application filed under section 13B of the Act could not be held to be justified. 6. Consequently, the appeal succeeds & is hereby allowed. The order of the Ld. Family Court impugned dated 4-12-2012 is hereby quashed & set aside. Family Court impugned dated 4-12-2012 rejecting their application filed under section 13B of the Act could not be held to be justified. 6. Consequently, the appeal succeeds & is hereby allowed. The order of the Ld. Family Court impugned dated 4-12-2012 is hereby quashed & set aside. The parties become entitled for decree of divorce by consent as prayed for under section 13B of the Act,1955. Decree be prepared accordingly.