HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
D.B. Civil Miscellaneous Appeal No. 2801 / 2016
Manoj Goyal S/o Shri Fateh Chand Goyal R/o 4-D-11, Mahavir
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).
For Appellant(s) : Mr.Prateek Kasliwal Mr.Divesh Sharma,
For Respondent(s) : Mr.Abdul Kalam Khan, Adv.
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE RAMCHANDRA SINGH JHALA
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)
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
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
Magistrate No.1 (South), Kota.
(3 of 5)
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
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)
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)
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
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
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