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2018 DIGILAW 341 (HP)

Dhale Ram v. Pushpa Devi

2018-03-14

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with the judgment dated 16.5.2017 passed by the learned Additional Sessions Judge, Kullu, HP in Criminal Appeal No. 29 of 2016, affirming order dated 24.9.2015 passed by the learned Chief Judicial Magistrate, Kullu, Himachal Pradesh in Petition No. 30-I of 2014, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter, ‘Act’), whereby application filed by respondent No. 1 under Section 12 of the Act was allowed and protection, residence and maintenance orders came to be passed in favour of respondent No. 1, petitioner has approached this Court by way of instant proceedings under Section 482 CrPC. 2. For having bird’s eye view, necessary facts shorn of unnecessary details are that marriage between petitioner and respondent No. 1 was solemnized in the year 2011 and one child was born out of their wedlock. Allegedly the petitioner started abusing and beating respondent No. 1 at the instance of his parents, who were insisting upon him to give divorce to respondent No. 1 and marry some other girl. It is also alleged that petitioner compelled respondent No. 1 to leave her matrimonial home. Subsequently, respondent filed an application/complaint under Section 12 of the Act averring therein that she wanted to live with her husband but since she apprehends danger to her life, protection, residence and maintenance orders may be passed in her favour. Learned Chief Judicial Magistrate, taking note of the material adduced on record by the respective parties, allowed the application filed by respondent No. 1 and prohibited petitioner and respondent No. 2 from committing any act of domestic violence and directed petitioner to provide accommodation to respondent No. 1, consisting of one room with kitchen, bath room and toilet. Learned trial Court also reserved liberty to respondent No. 1 to hire alternative accommodation in the event of failure on the part of petitioner to provide accommodation, rent and electricity bills whereof were to be paid by the petitioner. Learned Chief Judicial Magistrate further directed the petitioner to give monthly maintenance of Rs. 2,000/- to respondent No. 1 and Rs. 1,000/- to her minor child. 3. Being aggrieved and dissatisfied with the aforesaid order passed by learned Chief Judicial Magistrate, petitioner preferred a criminal appeal under Section 29 of the Act before Additional Sessions Judge, Kullu, Himachal Pradesh. Learned Chief Judicial Magistrate further directed the petitioner to give monthly maintenance of Rs. 2,000/- to respondent No. 1 and Rs. 1,000/- to her minor child. 3. Being aggrieved and dissatisfied with the aforesaid order passed by learned Chief Judicial Magistrate, petitioner preferred a criminal appeal under Section 29 of the Act before Additional Sessions Judge, Kullu, Himachal Pradesh. However, the fact remains that the said appeal was dismissed, as a result of which order dated 24.9.2015 passed by Chief Judicial Magistrate, Kullu, came to be upheld. In the aforesaid background, petitioner has approached this Court by way of instant petition praying therein to set aside impugned judgment passed by Additional Sessions Judge, Kullu and order passed by Chief Judicial Magistrate. 4. During proceedings of the case, this Court solely with a view to explore possibility of amicable settlement inter se parties, directed both the parties to remain present in the Court. On 1.1.2018, Ms. Meghna Kashav, learned legal aid counsel appearing for respondent No. 1, on instructions of her client, stated before this Court that her client is ready and willing to give divorce to the petitioner provided she is offered sufficient amount of money to maintain herself and her child. 5. Today, learned counsel representing the petitioner filed an application under Section 482 CrPC, seeking therein permission to place on record compromise arrived at inter se parties and copy of petition filed under Section 13B of Hindu Marriage Act in the competent Court of law for dissolution of marriage by way of mutual consent. While referring to the averments contained in the application, learned counsel representing the parties stated before this Court that both the parties have compromised the matter inter se them amicably and in this regard, they have reduced into writing the compromise (Annexure A-1). Learned counsel representing the parties also invited attention of this Court to the petition having been filed by them jointly under Section 13B of Hindu Marriage Act for dissolution of marriage by way of decree of divorce by mutual consent in the court of learned District Judge, Kullu. 6. Learned counsel representing the parties also invited attention of this Court to the petition having been filed by them jointly under Section 13B of Hindu Marriage Act for dissolution of marriage by way of decree of divorce by mutual consent in the court of learned District Judge, Kullu. 6. This Court with a view to ascertain the correctness of the aforesaid submissions having been made by the learned counsel representing the parties also recorded statements of petitioner and respondent No. 1, who stated on oath before this Court that they have compromised the matter inter se them, whereby petitioner has agreed to pay a sum of Rs. 1.00 Lakh to the respondent No.1 for her and her minor child’s maintenance. Respondent No. 1 also stated before this Court that she has received Rs. 50,000/- in cash from the petitioner on 12.3.2018, whereas, remaining amount shall be paid by the petitioner at the time of recording of her statement in petition under Section 13B of Hindu Marriage Act. Petitioner also stated before this Court that apart from aforesaid money, he has agreed to transfer his share of the landed property in favour of his minor son on or before 12.4.2018. In terms of aforesaid agreement, respondent No.1 Pushpa Devi also undertook to withdraw the petition filed by her under Section 125 (3) CrPC arising out of order passed in application under Section 12 of the Act. Their statements have been taken on record. 7. In view of aforesaid development, learned counsel for the parties prayed that present petition having been filed by the petitioner may be disposed of with a direction to the learned District Judge, Kullu to pass appropriate orders in the petition having been filed by them jointly, under Section 13B of Hindu Marriage Act for dissolution of marriage by way of decree of divorce by mutual consent. 8. After having carefully gone through the averments contained in the compromise as well as statements of petitioner and respondent No. 1 recorded on oath, this court sees no impediment in accepting aforesaid prayer having been made on behalf of the parties to the lis. 9. 8. After having carefully gone through the averments contained in the compromise as well as statements of petitioner and respondent No. 1 recorded on oath, this court sees no impediment in accepting aforesaid prayer having been made on behalf of the parties to the lis. 9. This court is of the view that there is no possibility of reproachment between the parties and marriage has broken beyond repair, as such, statutory period of six months as envisaged under Section 13B of the Hindu Marriage Act for grant of divorce by mutual consent can be waived of. 10. In this regard, it would be apt to take note of the judgment rendered by the Hon'ble Apex Court in Veena vs. State (Government of NCT of Delhi) and another, (2011) 14 SCC 614 , wherein the Hon'ble Apex Court has held as under: “We have heard the learned counsel for the parties and talked to the parties. The appellant has filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, being HMA No. 397/2008 which is pending before the Court of Sanjeev Mattu, Additional District Judge, Karkardooma Courts, Delhi. In the peculiar facts and circumstances of this case, we deem it appropriate to transfer the said divorce petition to this Court and take the same on Board. The said divorce petition is converted into one under Section 13B of the Hindu Marriage Act and we grant divorce to the parties by mutual consent.” 11. Otherwise also, it is quite apparent from the record that the parties are not living together for a considerable time and petition under Section 12 of the Act came to be instituted in the competent Court of law in the year 2014 i.e. on 12.5.2014. 12. This court after having interacted with the parties, sees no possibility of reconciliation inter se them and as such, no fruitful purpose will be served in case matter is kept pending for another six months before passing decree of divorce by mutual consent. 13. Hon'ble Apex Court in Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612 , has further held as under: “7. 13. Hon'ble Apex Court in Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612 , has further held as under: “7. We also see from the trend of the litigations pending between the parties that the relationship between the couple has broken down in a very nasty manner and there is absolutely no possibility of a rapprochement between them even if the matter was to be adjourned for a period of six months as stipulated under Section 13B of the Hindu Marriage Act. 8. We also see from the record that the first litigation had been fled by the respondent husband on 2-6-2006 and a petition for divorce had also been filed by him in the year 2007. We therefore, feel that it would be in the interest of justice that the period of six months should be waived in view of the above facts.” 14. Accordingly, in view of aforesaid law laid down by the Hon'ble Apex Court, statutory period of six months deserves to be waived of taking note of the fact that marriage between the parties has broken beyond repair and there is no possibility of parties living together. 15. Consequently, in view of detailed discussion made herein above, present petition is allowed. Judgment dated 16.5.2017 passed by Additional Sessions Judge, Kullu, HP in Criminal Appeal No. 29 of 2016 and order dated 24.9.2015 passed by the learned Chief Judicial Magistrate, Kullu, Himachal Pradesh in Petition No. 30-1 of 2014, are quashed and set aside. District Judge Kullu is directed to expeditiously decide the petition under Section 13B of Hindu Marriage Act without waiting for statutory period of six months to expire. Pending applications, if any, are disposed of.