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2018 DIGILAW 2043 (RAJ)

Annu Marshal v. Devendra Kumar Yogi

2018-10-05

MOHAMMAD RAFIQ, PRAKASH GUPTA

body2018
JUDGMENT 1. This appeal on behalf of the appellant-wife Annu Marshal has been filed under Section 19 of the Family Court Act read with Section 28 of the Hindu Marriage Act, 1955, challenging the judgment dated 20.08.2010 passed by the learned Judge, Family Court No.2, Jaipur, whereby the petition filed by the appellant-wife under Section 13 of the Hindu Marriage Act, 1955, has been dismissed. 2. This court, vide order dated 07.09.2018, considering the nature of dispute, referred the dispute for mediation to the Mediation Centre attached to this Court, for exploring the possibility of out of court settlement between the parties. The parties have arrived at a compromise before the Mediation Centre and the compromise dated 24.09.2018 is on the record of the file, which, for the ready reference, is reproduced as follows:- "Both the parties belong to Jaipur and their marriage was solemnized on 18.10.2007 at Arya Samaj Vidhyadhar Nagar Jaipur. After marriage Annu the appellant straight away went to her parental hous and she never returned to her marital home. As such marriage was not consummated. Despite efforts by the respondent husband Devendra Kumar she did not return to her marital home. Both the parties are living separately since 18.10.2007 except from 22.5.2008 to 27.5.2008 at Sitapura but the marriage was not consummated. The respondent submitted an application u/S 9 Hindu Marriage Act 1955 for restitution of conjugal rights before the Family Court Jaipur and the same was withdrawn because the appellant filed an application for dissolution of marriage u/S 13 Hindu Marriage Act. The respondent, however again filed an application u/S 9 of Hindu Marriage Act 1955 before the Family Court No.1, Jaipur on 14.3.2011 for restitution of conjugal rights which was dismissed on 29.3.2014 and no appeal was filed by the respondent. Annu the appellant filed application u/S 13 Hindu Marriage Act, 1955 for dissolution of marriage before the Family Court No.2, Jaipur which came to be dismissed vide judgment dated 20.08.2010. The appeal has been filed by her before the Hon'ble High Court which was referred for mediation by order dated 7.9.2018. In pursuance of the said order, mediation proceedings were held by the Mediator Shri S.C. Mittal (Former Judge) on 18.9.2018 and 24.9.2018. The appeal has been filed by her before the Hon'ble High Court which was referred for mediation by order dated 7.9.2018. In pursuance of the said order, mediation proceedings were held by the Mediator Shri S.C. Mittal (Former Judge) on 18.9.2018 and 24.9.2018. Both the parties also met in the chamber and discuss and to know the view of each other on the marital relationship as to how it could be resolved but we could not reach to any agreement to restore the matrimonial relation on any condition on 18.9.2018. We have come to the conclusion that now it is impossible to live together amicably and the marriage has irretrievably broken so to say a dead relationship. We agree both of us that for our further and peaceful life and not to indulge in litigation, we should sever our relationship by mutual consent. We have taken this decision with free will, without any pressure or inducement. We both will request the Hon'ble High Court to grant us decree of divorce and the marriage solemnized on 18.10.2007 at Arya Samaj Vidhyadhar Nagar may be dissolved and decree to this effect may be passed. No other litigation is pending between the parties before any court. The appellant Annu Marshal has not claimed and shall not ever claim any amount with regard to alimony and maintenance. No claim of any kind is pending and will not be raised by both the parties in future." 3. The compromise has been signed by both the parties, their respective counsels as also the learned Mediator on 24.09.2018. The parties have filed a joint application bearing inward no.77786 dated 04.10.2018 under Section 151 of the Code of Civil Procedure praying for dissolution of their marriage on the basis of the compromise arrived at between them and for waiver of the statutory period of six months as prescribed in Section 13B(2) of the Hindu Marriage Act, 1955, and to pass a decree of divorce by mutual consent keeping in view the fact that their marriage has reached the stage of irretrievable broken down. 4. Both the parties submitted that even a petition under Section 13 of the Act, on joint request of the parties, can be converted into one under Section 13-B of the Act for grant of decree of divorce by mutual consent. 4. Both the parties submitted that even a petition under Section 13 of the Act, on joint request of the parties, can be converted into one under Section 13-B of the Act for grant of decree of divorce by mutual consent. In support of this submission, learned counsel relied on the judgments of the Supreme Court in Veena Vs. State Govt. of NCT, Delhi & Another., (2011) 14 SCC 614 , Devinder Singh Narula Vs. Meenakshi Nangia, (2012) 8 SCC 580 , and Amardeep Singh Vs. Harveen Kaur, (2017) 8 SCC 746 . In Amardeep Singh, supra, the Supreme Court laid down that since the cooling off period mentioned in Section 13- B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. 5. In view of the compromise arrived at between the parties, we are persuaded to allow the appeal. The appeal is accordingly allowed. The judgment and order dated 20.08.2010 of the learned Family Court No.2, Jaipur, is set side. Petition for mutual divorce filed before the Family Court No.2, Jaipur, stands allowed. The marriage between appellant-wife and respondent-husband is therefore dissolved by mutual consent with immediate effect in terms of the compromise quoted above. Decree of divorce be prepared accordingly.