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2019 DIGILAW 517 (GAU)

Subrata Debroy v. Kalpana Das

2019-04-29

A.K.GOSWAMI, A.S.BOPANNA

body2019
JUDGMENT : A.S. Bopanna, J. Heard Mr. A. Ganguly, leaned counsel for the appellant and also Ms. Monica Kechii, learned counsel for the respondent. 2. The instant appeal is filed by the husband assailing the judgment dated 30.04.2016 passed by the Additional District Judge No.1, Tinsukia in Title Suit (M) No. 28/2008. 3. The petition before the Court below was filed under Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1955 seeking dissolution of the marriage solemnized between the parties on 28.05.2004. The Court below through the judgment dated 30.04.2016 has dismissed the petition. During the pendency of this appeal, the parties were referred to mediation to explore the possibility of mutual settlement. Pursuant thereto, the memorandum dated 15.3.2019 is entered into between the parties whereby they have agreed to mutual settlement. The same is placed on record in this appeal. 4. A perusal of the memorandum would indicate that the parties being of the opinion that they are unable to continue with the marital relationship, have decided to live separately and have further agreed that their minor child - Ayush Debroy will be under the care and custody of the respondent, namely, the mother of the child. In that view, they have agreed that the marriage be dissolved and the appellant herein has agreed to pay the alimony of Rs.5 lakhs of which, as recorded in the memorandum, a sum of Rs.1 lakh was paid and the balance of Rs.4 lakhs was agreed to be paid. When the appeal is taken up for consideration, the learned counsel for the appellant submits that a further sum of Rs.1 lakh has been paid. 5. Be that as it may, the balance amount, as agreed in the memorandum, is required to be paid. On payment of the said amount, the petition filed by the respondent seeking maintenance and pending before the Chief Judicial Magistrate, Dibrugarh is agreed to be withdrawn. 6. 5. Be that as it may, the balance amount, as agreed in the memorandum, is required to be paid. On payment of the said amount, the petition filed by the respondent seeking maintenance and pending before the Chief Judicial Magistrate, Dibrugarh is agreed to be withdrawn. 6. In the above circumstance, having taken note of the memorandum of settlement between the parties, though it is seen that the petition originally filed before the Court below was under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, since the memorandum drawn up is in terms of Section 89 of the Civil Procedure Code and the parties have settled the dispute through mediation, we are of the opinion that the same be accepted in the instant appeal and that the prayer as made before the Court below is liable to be granted. In that view, the marriage solemnized between the parties on 28.05.2004 is ordered to be dissolved. Decree to that effect be drawn up. While drawing up the decree, Registry shall make the memorandum of settlement as a part of the decree. 7. While arriving at the above conclusion, since we have also taken note that the balance of the permanent alimony is to be paid in installments, it is made clear that if the balance amount is not paid, the respondent would be at liberty to seek for recall of this order and restoration of the appeal for consideration on merit. It is further made clear that neither of the parties shall contract marriage till the last of the installment is paid and the decree granted hereunder becomes effective in terms of this order. In terms of the above, the appeal stands disposed of.