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2022 DIGILAW 1753 (GUJ)

Wing Commander Abhishek Singh Tanwar v. Deepika W/o. Abhishek Singh Tanwar

2022-12-13

N.V.ANJARIA, SANDEEP N.BHATT

body2022
ORDER : (N.V. Anjaria, J.) Heard learned senior advocate Mr.Percy Kavina with learned advocate Mr. S.J. Adeshra for the appellant and learned advocate Mr.Bhavin Satwara for the respondent. 2. This First Appeal arose from order dated 17.10.2022 passed by the Principal Judge, Family Court, Ahmedabad below Exhibit 1 in Family Suit No.1922 of 2019. It was the proceedings instituted by the petitioner Husband before the Family Court for obtaining decree of divorce under Section 13(1) of the Hindu Marriage Act, 1955. 3. It appears that in the said proceedings, the parties filed consent terms before the Family Court. In the said consent terms, the parties inter alia agreed for mutual separation by way of divorce and also decided in respect of the amount of permanent alimony to be given to the wife. 3.1 The Family Court however refused to accept the consent terms, further rejecting the prayers of the parties to grant relief in terms of consent by passing decree for dissolution of marriage. 3.2 The Family Court in its order recorded as under, “At this juncture, unless and until, all the terms and conditions, which have been agreed upon by and between the parties in the Consent Terms are fulfilled by the both the parties, this Court cannot grant the relief of dissolution of marriage by passing a decree of divorce on the basis of the terms and conditions arrived at by and between the parties in their Consent Terms at Exh-24.” 3.3 While passing the above order and refusing to accede to the consent terms of the parties, the Family Court inter alia proceeded to observe in para 8, which reason appears to have been weighed with the Family Court for passing the impugned order. “8. “8. Its to be noted that in the present case on hand, as per the terms and conditions of the para 3 (d) and (e); the petitioner shall have to pay to the respondent a sum of Rs.55,00,000/- (Rupees Fifty Five Lakh Only) towards her present and future maintenance and permanent alimony and all other financial claims including personal articles, belonging and home items as well as previous financial transactions, and for that the petitioner shall prepare a draft of the said amount and handover the same to the Nazir of the Principal Family Judge at Ahmedabad for safe custody at the time of filing of the present consent terms in Family Suit No. 1922 of 2019 and such draft will be handed over to the respondent after the passing of the decree in present proceedings i.e. Family Suit No. 1922 of 2019” 3.4 On 2.11.2022, when the appeal came up for consideration, the court inter alia observed in its order that if the parties were desirous to move Family Court concerned since there was inclination to deposit the entire amount by way of demand draft and for that other side had no objection, the parties were permitted to approach the Family Court. 3.5 Thereafter, on 8.11.2022, this court passed the following order, “The appellant- husband Wing Commander Abhishek Singh Tanwar filed Family Suit No.1922 of 2019 for decree of divorce under Section 13(1) of the Hindu Marriage Act. In the said proceedings, it appears that the parties negotiated for settlement which culminated into drawing of consent terms dated 1.10.2022. The consent terms figures on record of this appeal (Annexure C, page 24). 2. The consent terms were submitted before the Family Court. The Family Court passed order below Exhibit 1 dated 17.10.2022. The said order reads as under in its operative part. “At this juncture, unless and until, all the terms and conditions, which have been agreed upon by and between the parties in the Consent Terms are fulfilled by the both the parties, this Court cannot grant the relief of dissolution of marriage by passing a decree of divorce on the basis of the terms and conditions arrived at by and between the parties in their Consent Terms at Exhibit-24.” 3. It is against the aforesaid order that the present appeal is directed. It is against the aforesaid order that the present appeal is directed. When the appeal came up for the first time for consideration before the court, this court in order dated 2.11.2022 inter alia recorded that the appellant was needed to satisfy the court about the maintainability of the appeal inasmuch as the order sought to be impugned was perceived to be an interlocutory order by the court, it was recorded further, thus, “3. In the meantime, if the parties are desirous to also move before the Family Court concerned, as the inclination to deposit the entire amount by way of demand draft is proposed before this Court, other side also has no objection to the said, that option is kept open for the parties.” 4. Apropos the above observation made by the court, when condition No.3(d) and 3(e) of the consent terms are referred to by the Family Court in para 8 of the impugned order to further mention that thereunder the respondent shall pay the petitioner wife sum of Rs.55 lakhs towards the present and future maintenance and permanent alimony and all other financial claims including personal articles, belongings and home items, and that the petitioner shall prepare a draft of the said amount and hand over the same to the Nazir of the Principal Family Court, Ahmedabad. 5. When this court inquired about the above aspect, more particularly with reference to what is observed by the court in para 3 of order dated 2.11.2022, after ascertaining the inclination of the parties to deposit and accept the said amount, the appellant is hereby given liberty and is permitted, to approach the Family Court in light of the aforesaid observations made in the earlier order to deposit the said amount. Learned senior advocate Mr. Kavina for the appellant stated that the petitioner shall deposit the same. 6. Learned advocate Mr.Bhavin Satwara for the respondent wife who was not present when the order dated 2.11.2022 was passed due to ill health, is present today and has confirmed that upon deposit of the amount, the consent terms would be acted upon.” 3.6 After the aforesaid order, the appeal now comes up for consideration today. 6. Learned advocate Mr.Bhavin Satwara for the respondent wife who was not present when the order dated 2.11.2022 was passed due to ill health, is present today and has confirmed that upon deposit of the amount, the consent terms would be acted upon.” 3.6 After the aforesaid order, the appeal now comes up for consideration today. While it is reflected in the order dated 8.11.2022 that the petitioner Husband has already deposited the entire amount payable under the consent terms to the Wife towards the permanent alimony, which was confirmed by Wife also, it was stated to the court that in the interregnum, the parties have further acted towards compliance of the consent terms. It was jointly stated that the proceedings initiated by the Wife under Domestic Violence Act being Criminal Miscellaneous Application No.160 of 2021 has been withdrawn. Copies of the order of disposal of the said proceedings are produced which will remain on record. 3.7 It was further stated that the Criminal Miscellaneous Application No.3449 of 2020 which was an application for quashing of the complaint by consent has been allowed by learned single Judge, complaint being FIR registered in Puna Police Station by CRN-11210046200193 pending in Additional Civil and JMFC Court at Surat. 4. In light of the above developments, which reflected that the parties have travelled farther in respect of the consent terms they have arrived at and they are all complied with, the court finds it proper to remand the case to the Family Court. At this stage Section 9 of the Family Courts Act, 1984 may be referred to which reads as under, “9. Duty of Family Court to make efforts for settlement.- (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. - (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit." (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it think fit to enable attempts to be made to effect such a settlement. (3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings.” 4.1 The trial court shall take into account the total facts and circumstances and the developments which have been mentioned above as well as the mandate of Section 9 above and pass appropriate orders in accordance with law. 5. We do not express any opinion on the merits of the case of the either side. The Appeal stands disposed of. In view of disposal of the Appeal, Civil Application will not survive, accordingly it is disposed of.