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2018 DIGILAW 2348 (ALL)

Mohit Maheshwari v. Jyoti Agarwal

2018-11-16

SHASHI KANT GUPTA

body2018
JUDGMENT : Shashi Kant, J. 1. This appeal has been filed by the appellant against the impugned order dated 05.09.2018 passed by Principal Judge, Family Court, Badaun in Misc. Case No. 99 of 2018, whereby the application jointly filed by the appellant Mohit Maheshwari as well as respondent Smt. Jyoti Agrawal under Section 14 (2) of the Hindu Marriage Act, 1955 (herein after referred as “Act, 1955”) has been rejected and the petition seeking divorce by mutual consent under Section 13 B of the Act has been returned. 2. By the order dated 13.11.2018, this Court had directed the appellant and the sole respondent to appear in person in the Court. In pursuance of the said order, the aforesaid petitioner as well as respondent are present in the Court. 3. Counter affidavit has also been filed by the respondent which is taken on record. 4. We have heard learned counsel for the parties and perused the record. 5. A perusal of the record shows that petition under Section 13 B of the Act, 1955 was filed by the parties by mutual consent. In the petition it was stated that the marriage of the petitioner and the respondent was solemnized according to Hindu customs and rites on 06.02.2018 at Bholadham and after solemnization of marriage, petitioner and respondent lived together and performed their matrimonial obligation, as husband and wife. After lapse of few days, after solemnization of marriage, certain mental unequilibrium and mental differences arose in between the parties, which resulted into separation with each other and with effect from 10.07.2018, both the parties are living separately from each other. 6. In para-4 of the petition filed before learned Lower Court, the details of the criminal cases including an application filed under Section 125 Cr.P.C. by the respondent Jyoti Agarwal have been given. For ready reference, para-4 of the plaint is quoted hereinbelow: “That the parties to this petition are highly educated, they are understand their welfare and therefore, both the parties have amicably decide to get the marriage tie dissolved by a decree of divorce on the basis of the mutual consent of the parties, as both the parties do not want to unnecessarily harass each other and indulge in unnecessary litigation, and also all the criminal cases which was filed by the petitioner no. 2 against the petitioner no. 1, and his family members as Misc. 2 against the petitioner no. 1, and his family members as Misc. Case No. 1046 of 2018 Smt. Jyoti Agarwal vs. Maheshwari under section 125 Cr.P.C. against only petitioner no.1, FIR dated 06.08.2018 lodged by petitioner no. 2 under section 498A, 328, 32, 504, 506 IPC, and under Sections 3/4 D.P. Act, against the petitioner no.1, his father Sri Neeraj Maheshwari, his mother Smt. Neelu Maheshwari, and his brother Ankur Maheshwari, F.I.R. dated 13.8.2018 lodged by the petitioner no. 2 under Section 66 I.T. Act against the petitioner no. 1, another F.I.R. dated 19.08.2018 lodged by petitioner no. 2 under Section 420 IPC against the petitioner no. 1 and petitioner no. 1 also filed a complaint case no. of 2018 Neeraj Maheshwari vs. Deepak Agarwal and others under Sections 323, 352, 452, 427, 504, 506, 499, 500, 384, 389 I.P.C. against the father of petitioner no. 2, and against the friends of father of the petitioner no. 2, filed against each other as detailed above be withdrawn forthwith, therefore, the present petition is being filed from the sweet will, and free consent of the parties without any coercion, fraud misrepresentation, under influence upon each other, with the permission of the Hon'ble Court under Section 14 (2) Hindu Marriage Act, because petition under Section 13 B Hindu Marriage Petition for divorce is being filed in exceptional circumstances within one of marriage.” 7. In para-6 of the petition, it has been further inter-alia stated that father of the petitioner no. 1 has paid Rs. 9 lacs by way of bank draft no. 250610 dated 27.08.2018 and has also paid Rs. One lack by another bank draft no. 250611 dated 27.08.2018 to the respondent i.e. Smt. Jyoti Agarwal for permanent alimony and thereafter respondent has no concern with the properties movable or immovable of petitioner or his family's movable or immovable properties, inter alia there is no possibility of living together as husband and wife, therefore, the petition under Section 13 B of Hindu Marriage Act is being filed. Alongwith the plaint an application was also filed under Section 14 of the Act, praying for an order permitting the parties to present the petition for divorce under Section 13 B of the Act before the expiry of one year. 8. The Court below vide order dated 05.09.2018 has rejected the application 'paper no. Alongwith the plaint an application was also filed under Section 14 of the Act, praying for an order permitting the parties to present the petition for divorce under Section 13 B of the Act before the expiry of one year. 8. The Court below vide order dated 05.09.2018 has rejected the application 'paper no. 3A' filed under Section 14 of the Act before the expiry of one year seeking permission to present a petition for divorce by mutual consent and thereafter the Court below returned the divorce petition filed under Section 13 B of the Act, 1955. 9. Hence, the present appeal has been filed. 10. Heard Sri Utkarsh Birla, learned counsel for the petitioner no. 1 (husband) and Sri Shashi Prakash Rai, learned counsel for sole respondent (wife). 11. Learned counsel for the parties have stated that the Trial Court has rejected the application filed under Section 14 of the Act, 1955 mechanically by a slipshod order applying casual and superficial approach. Petition seeking divorce by mutual consent under Section 13 B of the Act was also returned to the petitioner by the Court below. 12. From the perusal of the record, it is evident that petition for divorce by mutual consent was filed under Section 13 B of the Act, 1955 within one year of the marriage. It was accompanied with an application under Section 14 of the Act for permitting them to present their applications before expiry of one year. The Court below while dismissing the application under Section 13 B of the Act, 1955 has observed that the grounds taken in the application filed under Section 14 of the Act do not suggest that the relationship between the parties cannot be mended back to normal. The said observation made by the Court below appears to be vague and without application of mind to the facts stated in the petition as well as in the application filed under Section 14 of the Act, 1955. 13. A perusal of the petition clearly shows that large number of criminal cases have been filed by the respondent against the petitioner as well as his family members in various sections of IPCs and in Dowry Prohibition Act and also under Section 66 I.T. Act. Allegations made in the criminal cases are of serious nature. 14. 13. A perusal of the petition clearly shows that large number of criminal cases have been filed by the respondent against the petitioner as well as his family members in various sections of IPCs and in Dowry Prohibition Act and also under Section 66 I.T. Act. Allegations made in the criminal cases are of serious nature. 14. The parties are present in person today before the Court and have categorically stated that their marriage is totally unworkable and emotionally dead, beyond salvage and broken down irretrievably as such they do not want to live together and want to divorce by mutual consent. 15. Learned counsel for the petitioner has placed reliance on the decision of Praveen and Sukanya, 2013 SCC Kerala 16950. 16. In view of the facts stated above, we are of the considered opinion that no purpose of any nature would be served by insisting that the parties should wait for one year as provided under Section 14 (1) and in our view, it would cause exceptional hardship to them. Therefore, the view taken by the Court below that the matter is not so serious and the parties can amicably settle their disputes, is vague and the Court below appears to have passed the above order casually without application of mind and perusing the record. 17. In view of the discussions made herein above, the order dated 5.9.2018 passed by the Family Court, Badaun in Misc. Case No. 99 of 2018 is set-aside and the application (3 A) filed under Section 14 of the Act stands allowed. The Family Court, Badaun will proceed with petition filed under Section 13 B of the Act, 1955 and dispose of the same expeditiously in accordance with law.