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2018 DIGILAW 2310 (HP)

Kamal Kumar v. Kalpana Kumari

2018-12-31

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. (Oral) - By way of instant petition filed under section 482 of the Code of Criminal Procedure, 1973 challenge has been laid to order dated 20.6.2018, passed by the learned Additional Sessions Judge, Hamirpur, in criminal Appeal No. 2 of 2014, whereby learned court below while partly allowing the appeal having been filed by the petitioner-Kamal Kumar, set aside order dated 28.2.2014, passed by the learned Chief Judicial Magistrate, Hamirpur, H.P., whereby learned CJM had awarded the maintenance allowance to the respondent Smt. Kamla Kumari and her daughter namely Kusum Bala @ Rs. 2,000/- p.m. each, from the date of filing of the present petition. 2. Facts, as emerge from the record are that, marriage inter-se parties was solemnized in the year, 1990 and out of the said wedlock, four children were born but since parties were not able to reside together on account of certain differences, they started living separately. Respondent subsequently filed petition under section 12 of the Protection of Women From Domestic Violence Act (in short "the Act"), in the Court learned CJM, Hamirpur, which came to be registered as Petition (D.V. Act) No. 09 of 2010. Learned court below on the basis of pleadings adduced on record by the respective parties held the respondent-wife (Kalpana) and her elder daughter entitled to the maintenance of Rs. 2,000/- p.m. each to be paid by the present petitioner from the date of filing of the present petition. 3. Being aggrieved and dis-satisfied with the aforesaid order passed by the learned Chief Judicial Magistrate, Hamirpur, petitioner preferred an appeal under Section 29 of the Act in the Court of learned Additional Sessions Judge Hamirpur, who while partly allowing the appeal upheld the maintenance awarded in favour of the respondent Kalpana, whereas he set-aside the amount of maintenance awarded in favour of the daughter Kusum Bala, who is not party before this Court. In the aforesaid background, petitioner has approached this Court laying therein challenge to order dated 20.6.2018, passed by the learned Additional Sessions Judge, in the instant proceedings. 4. On the last date of hearing i.e. 4.12.2018, learned counsel representing the parties, on the instructions of their respective clients, informed this Court that parties have resolved to settle their dispute amicably inter-se them and as such, on their joint request, this Court summoned both the parties to the Court. 5. 4. On the last date of hearing i.e. 4.12.2018, learned counsel representing the parties, on the instructions of their respective clients, informed this Court that parties have resolved to settle their dispute amicably inter-se them and as such, on their joint request, this Court summoned both the parties to the Court. 5. Today, both the parties have come present in the Court. Petitioner and respondent-wife, on oath stated before this court that they of their own volition and without there being any external pressure have resolved to get their marriage dissolved by way of mutual consent. In this regard they have already imparted instructions to their respective counsel to move an application under section 13 (B) of the Hindu Marriage Act, to be filed in the court of learned Additional Sessions Judge, Hamirpur, where the petitioner has already filed divorce petition for dissolution of marriage. Ms. Kalpana Kumari, stated on oath before this Court that she of her own, has consented to get her marriage dissolved, but that would be subject to the condition that she will get sum of Rs. 3.50 lac as permanent alimony. They further stated that they have no objection in case the decree of divorce by way of mutual consent is passed in their favour and they would be withdrawing all the cases filed by them against each other. 6. Mr. Kamal Kumar, fairly acknowledged the factum with regard to the compromise arrived inter-se parties, whereby he is under obligation to pay the aforesaid amount of Rs. 3.50 lac, to the respondent-complainant on account of permanent alimony. Statements having been made by the parties are taken on record and in view of the same, learned counsel for the petitioner states that he be permitted to withdraw the present petition with liberty to file application under Section 13-B of the Hindu Marriage Act, in the Court of learned Additional Sessions Judge, Hamirpur, 7. Mr. Amar deep learned counsel for the respondent while fairly acknowledging factum with regard to compromise arrived inter-se parties contended that since both the parties have made categorical statement on oath before this Court with regard to the compromise arrived at inter-se parties, copy of instant order may be sent to the court below so that appropriate orders are passed by that court in the proceedings to be initiated by the parties under section 13 (b) of the Hindu Marriage Act. 8. 8. Accordingly, in view of the above, present petition is dismissed as withdrawn with a direction to both the parties to file application under section 13 (B) of the Hindu Marriage Act, in terms of statements made before this court, in the court of learned Additional Sessions Judge, Hamirpur, who shall decide the same expeditiously in accordance with law. Needless to say the parties as per their statements are also bound to withdraw all the cases filed by them against each others and as such, court below while passing decree for dissolution of divorce by mutual consent, shall specifically include such conditions while passing decree in terms of joint petition filed under Section 13(B) of the Act Learned counsel for the parties undertake to cause presence of their respective clients before the court below on 4.2.2019, on which date parties shall remain present in the court below to enable it to proceed with the matter in accordance with law.