Manoj Goyal vs Smt Sunita Goyal on 2 June, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 2801 / 2016
Manoj Goyal S/o Shri Fateh Chand Goyal R/o 4-D-11, Mahavir
Nagar-III, Kota-324005.
—-Appellant
Versus
Smt Sunita Goyal W/o Shri Manoj Goyal, D/o Shri Banshi Lala
Mittal, R/o 265, Telipada, Bajaj Khana, Kota presently at House
No.541, Mahavir Nagar-I, Kota-324005 (Rajasthan).
—-Respondent

__
For Appellant(s) : Mr.Prateek Kasliwal Mr.Divesh Sharma,
Advocates.

For Respondent(s) : Mr.Abdul Kalam Khan, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE RAMCHANDRA SINGH JHALA
Order
02/06/2017

The case was last adjourned on 31.05.2017 and was to be

listed today but when the matter was not listed and the parties

remained present in court, a joint request was made by counsel

for the parties for listing of the matter in complementary list.

With the consent of the parties, the matter has been listed in

the complementary list today.

Heard the parties in person and their respective counsel.

The present appeal is directed against judgment decree

passed by the ld.Family Court, Kota dt.28.04.2016 rejecting the

application filed by the appellant-husband seeking divorce

u/Sec.13 of the Hindu Marriage Act, 1955.

The brief indisputed facts which have come on record are
(2 of 5)
[CMA-2801/2016]

that the marriage of appellant-husband with respondent-wife was

solemnized on 21.04.2003 at Kota according to Hindu rites and

customs but going on with their matrimonial discord, divorce

petition was filed by the appellant-husband u/Sec.13 of the Act,

1955 on 20.06.2011.

On the basis of pleadings of the parties, four issues were

framed by the ld.Family Court, Kota.

The issue No.2 was that she has deserted the appellant for a

continuous period of more than two years preceding the date of

presentation of divorce petition.

On the basis of the pleadings of the parties, although the

ld.Family Court decided both the issue Nos.1 2 which are

READ  Hansraj vs State Of Rajasthan Through P P on 1 June, 2017

basically the ground for seeking divorce against the appellant

which is the subject matter of challenge in the instant appeal filed

at his instance.

It has also come on record that apart from the present

appeal, pending before this court, yet there are other matters

pending between the parties:-

(a) Case No.62/2011 under the provisions of the Provisions

of Women from Domestic Violence Act, 2005 filed at the

instance of the respondent-wife, pending in the court of Civil

Judge-cum-Judicial Magistrate No.4 (North), Kota; and

(b) Criminal Case No.27/2008 arising from the FIR

No.34/2008 registered for the offence u/Sec.498A 406

IPC, pending in the court of Additional Chief Judicial

Magistrate No.1 (South), Kota.

(3 of 5)
[CMA-2801/2016]

Since cognizance was taken by the ld.Trial Judge on the FIR

No.34/2008, impleading the members of family including brother-

in-law (Suresh Garg) of the appellant has challenged the order

taking cognizance against him in Appeal No.158/2015 which is

pending in the court of Additional District Judge No.4, Kota.

After the notices of the present appeal came to be served, at

one point of time the matter was sent for mediation but could not

succeeded and both the lawyers with their joint efforts and as

consented to the parties arrived to a common consensus keeping

in view the interest of their respective parties to whom they are

representing to dissolve their on-going matrimonial discord which

is agreed to both of them on certain terms conditions and a joint

compromise has been filed in this court which is duly signed by

the parties identified by their counsel and notarized by the Oath

Commissioner, has been placed on record and marked as Annex.A

and it is agreed that a sum of Rs.15,00,000/- (Rupees Fifteen

Lakhs Only) has been paid by the appellant-husband through

seven Demand Drafts in total, xerox copies are placed on record

and marked as Annex.-B and it is also agreed that the matters

which are pending – initiated at the instance of the respondent-

wife i.e. Case No.62/2011 under the provisions of the Provisions of

Women from Domestic Violence Act, 2005 pending in the court of

Civil Judge-cum-Judicial Magistrate No.4 (North), Kota and

Criminal Case No.27/2008 arising from the FIR No.34/2008

registered for the offence u/Sec.498A 406 IPC pending in the

court of Additional Chief Judicial Magistrate No.1 (South), Kota

would not be persuaded further by the respondent-wife and
(4 of 5)
[CMA-2801/2016]

proceedings of both the cases be quashed and set aside in terms

of the compromise arrived at between the parties.

At the same time, although the appellant-husband failed to

establish that the respondent has deserted him for more than two

years preceding the date of filing of the divorce petition before the

ld.Family Court which is one of the ground for seeking divorce

required u/Sec.13(1)(ib) of the Act, 1955 but it has been agreed

between the parties and by the respondent-wife in particular

about the fact that they are living separately for almost 13 years

and it is not possible for them without discussing any reason to re-

unit together and she has deserted him for more than two years

preceding the date of filing of the divorce petition before the

ld.Family Court and both of them feel that it will be in their

interest to dissolve their marriage as early as possible.

At least from para-5 of the joint compromise application,

which has been filed by the parties, the issue No.2 regarding

desertion stands proved on the basis of what has been jointly

agreed by the parties, the appellant has made out a case of

seeking decree of divorce in terms agreed by the parties in holding

the issue No.2 to be decided in favour of the appellant regarding

desertion for a period of more than two years preceding the

presentation of divorce petition, as required u/Sec.13(1)(ib) of the

Act, 1955 and that can certainly be a ground, being agreed to the

respondent-wife making out a case to seek decree of divorce.

Taking note of the written agreement, of which reference has

been made by us, we consider it appropriate to hold that the

appellant has made out a case of desertion and finding in
(5 of 5)
[CMA-2801/2016]

reference to issue No.2, recorded by the ld.Family Court deserves

to be quashed and set aside and since desertion stands

established, the appellant has made out a case of grant of decree

of divorce, as prayed for.

Consequently, the instant appeal succeeds and is hereby

allowed. The finding recorded by the ld.Family Court in regard to

issue No.2 is hereby quashed and set aside and the appellant is

granted a decree of divorce dissolving their marriage solemnized

on 21.04.2003.

As agreed by the parties, the proceedings which are pending

between the parties viz., Case No.62/2011 under the provisions of

the Provisions of Women from Domestic Violence Act, 2005

pending in the court of Civil Judge-cum-Judicial Magistrate No.4

(North), Kota and Criminal Case No.27/2008 arising from the FIR

No.34/2008 registered for the offence u/Sec.498A 406 IPC,

pending in the court of Additional Chief Judicial Magistrate No.1

(South), Kota, in terms of the written agreement deserves to be

quashed and set aside and the Presiding Officer may take the

present order on record and pass appropriate orders in terms

thereof.

Accordingly, the instant appeal in terms indicated and agreed

by the parties, stands disposed of.

(RAMCHANDRA SINGH JHALA),J. (AJAY RASTOGI),J.

Solanki DS, PS/C-1

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