Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2654 (RAJ)

Jyoti Gupta v. Pankaj Gupta

2019-10-04

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

body2019
JUDGMENT 1. Both these appeals arise out of common judgment and decree dated 17.07.2017, hence they were heard and are being decided by this common judgment. 2. Appellant-wife in Appeal No. 4765 challenged the judgment dated 17.07.2017 of the Family Court, Alwar, whereby the petition filed by her under Sections 13 and 27 of the Hindu Marriage Act, 1955, has been dismissed. In appeal No. 4809/2017, she challenged the judgment dated 17.07.2017 whereby the petition under Section 9 of the Hindu Marriage Act filed by respondent-husband for restitution of conjugal rights has been allowed. 3. These have appeals remained pending before this Court for last more than two years. Both the parties jointly filed an application with the prayer that the proceedings in the present cases may be converted into one under Section 13-B of the Hindu Marriage Act, 1955. Since they have been living separately for last seven years, the waiting period of one year of the first motion referable to Section 13B(1) of the Hindu Marriage Act, 1955 stands completed and prayer is made that the second motion of six months under Section 13B(2) may be waived in the facts of the present case. The contents of the joint application are as follows:- "The Humble appellant and respondent most respectfully beg to submit jointly as under:- 1. The present misc. Appeal u/s. 19 of the Hindu Marriage Act, 1955, has been filed by appellant wife against the judgment dated 17-07-2017 passed by The Family Court, Alwar in divorce petition No. 818/2013, whereby the court below has dismissed the petition for divorce u/s. 13 filed by appellant. 2. The marriage between appellant wife and respondent husband was solemnized on 13.02.2011 as per Hindu rituals and customs at Alwar. But after some time of marriage the appellant and respondent are having difference between them. 3. That due to differences and disputes between appellant wife and respondent husband various FIRs and cases were filed by both the parties and their family members against each other. 4. That the cases filed from the side of appellant wife and his family members are mentioned as below:- S. No. Case No./FIR No. Name of the Court Title of case Next date in the matter 1. 23/85/2012 u/s. 498(A), 406 IPC, alongwith complaint case No. 23/520/2015 (FIR No. 22/2012, lodged by Girraj Prasad Gupta) AMJM No. 4, ALWAR State of Raj Vs. 23/85/2012 u/s. 498(A), 406 IPC, alongwith complaint case No. 23/520/2015 (FIR No. 22/2012, lodged by Girraj Prasad Gupta) AMJM No. 4, ALWAR State of Raj Vs. Pankaj Gupta & Ors. 17.10.2 019 2. FIR No. 1292/2012 u/s. 323, 341 & 251 IPC, (criminal case No. 150/2016) Decided by ACJM No. 1 Alwar vide judgment dated 04.05.201 9 State of Rajasthan Vs. Pankaj & Anth. Decided 3. 23/31/2019 u/s. 341, 379 IPC (FIR No. 161/2013) AMJM No. 4, Alwar Girraj Prasad Gupta Vs. Pankaj Gupta 15.10.2 019 4. 1/63/2019 u/s. 18-23 of the Domestic Violence Act AMJM No. 4, Alwar Jyoti Gupta Vs. Pankaj Gupta 11.11.2 019 5. That some case were also filed by the side of respondent husband and his family members against appellant wife. The details of cases filed by husband and his family members are mentioned as below:- S. No. Case No. Name of Court Title of Case Next Date 1. 225/2012 & 1/09 under Domestic Violence Act MJM No. 1, Alwar Anjana Vs. Jyoti 07.11.2 019 2. Criminal Revision No. 226/2018 (FIR No. 377/2012 u/s. 379, 405, 406 IPC ADJ No. 2 Pankaj Vs. State 15.11.2 019 3. Criminal Appeal No. 134/2019 District & Session Judge, Alwar Pankaj & Anth. Vs. State of Rajasthan 14.10.2 019 6. That now after a settlement both the parties are ready to dissolve their marriage with consent on following terms and conditions: I. That all the FIRs along with cases will be withdrawn by the respective parties and their family members who have lodged the cases and FIRs against each other and their family members or get it quashed by filing appropriate petition/application before any forum or court and will be closed. II. That no demand of any kind, be it monetary or likewise or any other, shall be made by either appellant or respondent or their family members, either in present or in future. The appellant wife shall not demand for permanent alimony in present as well as in future. The appellant wife shall also not demand the arrears of monthly maintenance and future maintenance fixed by the court of AMJM No. 4 in case No. 1/63/2019 titled as Jyoti Vs. Pankaj under the Domestic Violence Act. III. That the appellant wife lodged one FIR, bearing No. 1292/2012, against respondent husband Pankaj and one Pushpendra S/o. Ghanshyam at P.S. Kotwali, Alwar u/s. 323, 341, 325/34 IPC. Pankaj under the Domestic Violence Act. III. That the appellant wife lodged one FIR, bearing No. 1292/2012, against respondent husband Pankaj and one Pushpendra S/o. Ghanshyam at P.S. Kotwali, Alwar u/s. 323, 341, 325/34 IPC. In this matter the court of ACJM No. 1 Alwar convicted the respondent husband and Pushpendra vide judgment dated 04.05.2019 in criminal case No. 150/2016, titled as State of Rajasthan Vs. Pankaj & Anth. Against the judgment dated 04.05.2019 the respondent husband Pankaj and Pushpendra have filed criminal appeal before the District & Session Judge, Alwar, bearing criminal appeal No. 134/2019, titled as Pankaj & Anth. Vs. State (Item No.-3 of para No.-5). The appellant wife and respondent husband undertake that they will appear and file compromise before the learned appellate court and wife shall not have any objection as to acquittal of respondent husband and co accused Pushpendra, on next date of hearing. And if requires she will also appear before any forum or court to set aside the order of conviction. IV. That the father of appellant wife has lodged one FIR bearing No. 22/2012 at Mahila P.S. Alwar u/s. 498A, 406 of IPC against respondent Pankaj and his family members. On the FIR No. 22/2012 the criminal case No. 23/85/2012 is pending before AMJM No. 4, Alwar titled as State Vs. Pankaj & Ors. The father of appellant wife is one witness of present compromise and agrees with the terms and conditions of the present compromise. Appellant wife, her father, and respondent husband also undertake that they shall file one application before the court of AMJM No. 4, Alwar in criminal case No. 23/85/2012 for withdrawal of allegations made in the FIR and will also pray for compounding all the offences alleged against respondent husband and his family members on next date of hearing. V. That one FIR No. 161/2013 was lodged by father of appellant wife at P.S. Kotwali, Alwar against Pankaj u/s. 323, 341, 379 of IPC. On the FIR the criminal case No. 23/31/2019 titled as Girraj Vs. Pankaj is pending before AMJM No. 4, Alwar. Appellant wife, her father and respondent husband undertake that they will appear personally before the court below and file the copy of present compromise and will file application for compounding the offence. VI. On the FIR the criminal case No. 23/31/2019 titled as Girraj Vs. Pankaj is pending before AMJM No. 4, Alwar. Appellant wife, her father and respondent husband undertake that they will appear personally before the court below and file the copy of present compromise and will file application for compounding the offence. VI. That respondent husband Pankaj and appellant wife Jyoti also undertake that they will appear personally in criminal revision No. 226/2018 (against order dated 30.01.2018 passed by ACJM No. 2 Alwar), titled as Pankaj Vs. State of Rajasthan, pending before ADJ No. 2, Alwar, and shall file this compromise before the court below and respondent husband shall not have any objection for withdrawal of criminal revision on the next date of hearing. VII. That the mother of respondent husband is also one witness of present compromise and agrees with all the terms and conditions of the present compromise. The respondent husband, his mother and appellant wife undertake that they will appear before court of MJM No. 1 in case No. 225/2012 & 1/09 under the domestic violence Act and will file the copy of present compromise and pray for withdrawal of the case on next date of hearing. VIII. That both the parties also undertake that if the need arises in any of the pending cases they will file application for compounding the offences alleged by each other in the concerned court or further if need arises both they will file the criminal misc. petition u/s. 482 of Cr.P.C. for quashing of FIR or closing the criminal cases on the basis of present compromise before the Hon'ble Court. IX. That in any case, condition or circumstances if either of the party will not appear before any forum or court in relation to quashing/set aside of above mentioned cases than in such situation even in the absence of said party by virtue of this compromise the party praying for quashing FIR/criminal cases shall not require the consent/confirmation of the absent party. X. That all the allegations and counter allegations leveled against each other stand withdrawn. X. That all the allegations and counter allegations leveled against each other stand withdrawn. It is therefore most respectfully prayed that on the terms and conditions as agreed by both the parties as above, divorce by mutual consent be granted and a decree in same respect be passed by this Hon'ble Court and a direction be issued to the courts mentioned in para No. 4 & 5 to close the cases on the basis of present compromise." 4. In the joint application the parties have given lists of cases which they have filed against each other. Para 4 of the joint application contains the list of cases filed by the appellant-wife and her family members against the respondent-husband and his family members, whereas para 5 contains the list of cases lodged by the respondent-husband and his family members against the appellant-wife and her family members. 5. Both the parties have agreed to get their marriage dissolved by obtaining decree of divorce with consent on the conditions contained in para 6 of the application. 6. Both the parties, i.e., appellant-wife and respondent-husband are present in the Court. They have signed the proceedings of the Court. They have been identified by their respective counsel. On query by the Court, they have agreed to have expressed the desire to obtain the decree of divorce by mutual consent as per the terms and conditions enumerated in the joint application filed by them. 7. Learned counsel for the parties also jointly submit that these proceedings may be converted into the proceedings under Section 13-B of the Hindu Marriage Act, 1955 and they may be granted a decree of divorce by mutual consent in view of the settlement, referred to above. In support of this submission, learned counsel relied on the judgments of the Supreme Court in Veena Vs. State Govt. of NCT, Delhi & Anr., (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. 8. 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. 8. Learned counsel for the parties have also relied on the judgment of this Court in Smt. Palak Jain Vs. Naveen Rawat, (2019) AIR (Raj.) 33, wherein also this Court waived the cooling off period of six months and ordered to dissolve the marriage of the parties by mutual consent in terms of the compromise entered into between the parties. 9. Considering that the parties have decided to settle of their disputes, rather than requiring them to undergo the further trauma of approaching this court for getting the proceedings pending in various courts quashed and set aside, we direct that upon production of copy of this judgment before the concerned Court by either party, the proceedings in those cases shall be closed in view of the terms and conditions of the settlement mentioned in para 6 of the joint application, referred to above. 10. In so far as the Criminal Appeal No. 134/2019 pending before the District & Sessions Judge, Alwar, is concerned, which has been preferred against the order of the Additional Chief Judicial Magistrate No. 1, Alwar, dated 04.05.2019, whereby the respondent-husband has been convicted and sentenced for offence under Sections 323, 341 and 325 of the IPC, which are all compoundable, the concerned court shall, on production of a copy of this judgment, accordingly pass an order compounding the offences in terms of the compromise. 11. Both the appeals are disposed of in above referred terms. The impugned judgment and decree dated 17.07.2017 of the Family Court, Alwar, is set aside. The marriage between appellant-wife and respondent-husband is therefore dissolved by mutual consent with immediate effect in terms of the settlement, referred above, entered into between them. The conditions of settlement, referred above, shall form part of this judgment. Decree of divorce be prepared accordingly. 12. This also disposes of stay application and any other pending application. 13. Office to place a copy of this judgment in the file of connected appeal.