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2024 DIGILAW 2140 (GUJ)

Poonamben Jagdishbhai Patel W/O Jagdishbhai Bhagvanbhai Patel D/O Gandalal Joitaram Patel v. Jagdishbhai Bhagvanbhai Patel

2024-12-04

BIREN VAISHNAV, MAULIK J.SHELAT

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT) 1. The present appeal is filed by the original plaintiff who happens to be the wife of the respondent under Section 19 of the Family Courts Act, 1984 (hereinafter to be referred to as ‘the Act, 1984’ for short) challenging the impugned judgement and decree dated 24.07.2023 passed by the Principal Judge, Family Court, Mehsana, in Family Suit No.130 of 2021. 2. For the sake of brevity, the parties may be referred as per the original status in the suit. 3. The short facts of the case appears to be as under: 3.1 The plaintiff got married on 04.10.2007 with the defendant and out of their wedlock they were blessed with a son viz. Nikshit on 08.01.2013. It appears that the differences started thereafter which ultimately resulted into a mutual divorce executed by the parties vide deed of divorce on 01.09.2021. 3.2 The plaintiff-wife appears to have filed a Family Suit No.130 of 2021 before the Family Court, Mehsana, under Section 13(1)(B) of the Hindu Marriage Act, 1955 (hereinafter to be referred to as ‘the Act, 1955’ for short). The plaintiff prayed for dissolution of marriage on ground of mutual consent and further seek permanent custody of her son ‘Nikshit’. 3.3 The notice came to be served upon the defendant-husband who never appeared before the Family Court and contested the suit. 3.4 Prima-facie, it has been observed that due to absence of defendant-husband before the Family Court, though Family Suit was filed under Section 13(B) of the Act, 1955, could not have been considered by the Court concerned but, after appreciating the evidence on record, the learned Family Court has dismissed the suit as plaintiff was unable to prove a customary divorce before the Family Court. Hence, the present appeal. 4. When this appeal was taken up for hearing, learned advocates for both the sides and their respective clients who were present before the Court on 26.11.2024, expressed their desire to mutually separate and requested this Court to pass appropriate order granting decree of divorce as per mutual consent. The order dated 26.11.2024 reads as under: “Learned counsel for the respective parties state that the appellant and the respondent are present before the Court. They are identified by the learned counsel for the respective parties. The order dated 26.11.2024 reads as under: “Learned counsel for the respective parties state that the appellant and the respondent are present before the Court. They are identified by the learned counsel for the respective parties. They state that they have filed their respective affidavits that they want to mutually separate and requested the Court to pass appropriate order. S. O. to 29.11.2024.” 5. In pursuance to the said order, the appellant has preferred an application being Civil Application No.1 of 2024 seeking waiver of six months period for getting consent decree and also filed another application under Order 6 Rule 17 of the Civil Procedure Code, seeking amendment in the grounds of appeal as well as incorporation of relevant prayer in the suit. Today, those applications are being allowed by separate orders. 6. The appellant-wife has submitted an affidavit dated 19.11.2024 and respondent-husband has also submitted affidavit dated 30.11.2024 declaring their intention to stay separately as they are residing separately since 2013. The parties have agreed to the conditions which are so mentioned in the affidavit submitted by the respondent-husband to this Court on 30.11.2024 which reads as under: “We the parties to the First- Appeal No.4114 of 2023, the applicant No.1, Appellant wife Ms.Poonam Jagdish Patel D/o. Gandalal Joitaram Patel, and Mr.Jagdish Bhagwan Patel, the husband, Appellant No.:2-Respondent do hereby solemnly affirm on oath and Jointly declare as follow. (1) That our marriage was solemnized on 04-10-2007 followed by Hindu Rites-custom and was registered at the office of Marriage Registrar at Unjha Municipality at Sr.No.:422, Volume No.:22, at page No.24. (2) That during the wedlock, a boy was born on 08-01- 2013 named "NIKSHIT". (3) That, we both separated from each other since year 2013 and are not living as a Husband and Wife ever since. (4) That, Son "NIKSHIT" is with Applicant No.:1, Mother Applicant No.:2 is not claiming any right. (5) That, Applicant No.:1, Wife at the same time not claiming any right of Future Alimony from Applicant No.:2, Husband. (6) That, Applicant No.: 2, agreed that, the Applicant No.:1- Applicant wife shall be the Sole guardian of Minor Son "NIKSHIT". The Applicant No.:1- agreed to Forgo/ waive maintenance for herself as also for Minor Son "NIKSHIT". (5) That, Applicant No.:1, Wife at the same time not claiming any right of Future Alimony from Applicant No.:2, Husband. (6) That, Applicant No.: 2, agreed that, the Applicant No.:1- Applicant wife shall be the Sole guardian of Minor Son "NIKSHIT". The Applicant No.:1- agreed to Forgo/ waive maintenance for herself as also for Minor Son "NIKSHIT". (7) That, we the Applicant No.:1 and Applicant No.: 2, i.e. the Wife and Husband, both have decided to unfasten Nuptial Knot by Mutual Consent and we both Record our Mutual Consent for Divorce and Dissolution of Marriage between us. (8) We the Applicants- Deponents herein do hereby Prays to this Hon'ble Court to Record our Free-Mutual Consent in a proceedings of First Appeal No: 4114 of 2023 and be pleased to order to pass a Decree of Divorce by Mutual Consent. What is stated herein before is true and correct” 7. Learned advocate Mr.Rajguru appearing for the appellant has stated under instruction of his client that the appellant-wife has gone through such conditions and agreed to the same which is also disclosed by her in her separate affidavit. 8. Thus, in view of the subsequent development which has taken place during the pendency of the appeal as well as the original Family Suit was filed by the wife under Section 13(B) of the Act, 1955, albeit filed without any consent obtained from the defendant-husband, we are of the opinion that prayers/requests made by the appellant-wife and respondent-husband requires to be accepted. 9. In view of the above, impugned judgement and decree dated 24.07.2023 passed by the Principal Judge, Family Court, Mehsana, in Family Suit No.130 of 2021, is hereby quashed and set aside. The appellant-wife and the respondent-husband having mutually agreed for dissolution of their marriage is hereby accepted thereby their marriage is dissolved forthwith. They are entitled to have decree of divorce as per their mutual consent terms recorded herein above. 10. Although, appellant-wife has not claimed any maintenance for herself and the minor son, considering the fact that son is minor, then without prejudice to his right to claim any financial assistance, if so required from the father, his right is hereby kept open to claim in case of exigency. It is made clear that permanent custody of son Nikshit remains with the appellant-wife, is agreed between the parties. 11. Accordingly, present appeal is partly allowed to the aforesaid extent. It is made clear that permanent custody of son Nikshit remains with the appellant-wife, is agreed between the parties. 11. Accordingly, present appeal is partly allowed to the aforesaid extent. Decree of divorce on mutual consent terms recorded herein above be drawn accordingly. Record and proceedings be sent back to Family Court forthwith. 12. Both the Civil Applications are also allowed. IA ORDER IN CA/1/2024 IN FA/4114/2023 1. Rule returnable forthwith. Ld. advocate Mr. G. K. Vaghani waives service of rule on behalf of opponent. 2. Heard learned advocates of respective parties who have jointly requested to grant prayer made in the application thereby requested this court to waive off the waiting period of six months as stipulated in S. 13 (B) (2) of Hindu Marriage Act, 1955. 3. We have gone through affidavits filed by respective parties and so also heard them in person who desirous to stay separately and request this court to grant decree of divorce on mutual terms agreed between them. 4. Thus, considering the peculiar facts and circumstances of the case and the averments made in the application and keeping in mind the desire of parties who are residing separately since 2013 as well as Family Suit seeking divorce filed was filed in year 2021 and as such parties have taken a mature decision to amicably resolve the disputes and to stay separately as well as taking into consideration the decision of the Hon'ble Supreme Court in case of Amardeep Singh v. Harveen Kaur reported in AIR 2017 SC 4417 , the Court deem it fit to allow the present application by granting prayer in terms of para- 6 (b) of the application. Accordingly, present application is allowed to the aforesaid extent. Rule made absolute accordingly. IA ORDER IN CA/2/2024 IN FA/4114/2023 1. Rule returnable forthwith. Ld. advocate Mr. G. K. Vaghani waives service of rule on behalf of opponent. 2. The present application is filed by original plaintiff- appellant-wife under Order 6 Rule 17 of CPC seeking amendment in memo of appeal and prayer made therein. It is not opposed by the opponent. 3. IA ORDER IN CA/2/2024 IN FA/4114/2023 1. Rule returnable forthwith. Ld. advocate Mr. G. K. Vaghani waives service of rule on behalf of opponent. 2. The present application is filed by original plaintiff- appellant-wife under Order 6 Rule 17 of CPC seeking amendment in memo of appeal and prayer made therein. It is not opposed by the opponent. 3. Considering the peculiar facts and circumstances of the case and the averments made in the application having not opposed and now opponent-husband is shown his willingness to agree for mutual consent divorce, this Court deem it fit to allow the present application by granting prayer in terms of para- 8 (b) of the application. Accordingly, present application is allowed to the aforesaid extent. Rule made absolute accordingly.