Shashank vs Nitika on 11 September, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

FAO(HMA) No. 280 of 2016
Decided on: September 11, 2017

.
——————————————————————————-

Shashank …Appellant

Versus

Nitika ..Respondent
——————————————————————————-
Coram
The Hon’ble Mr.Justice Sandeep Sharma, J.

Whether approved for reporting ?1yes.

——————————————————————————-
For the appellant Mr. Maan Singh, Advocate.

For the Respondent Mr. Ashwani Kaundal, Advocate.

——————————————————————————-
Sandeep Sharma, J

By way of instant appeal under Section 28 of the

Hindu Marriage Act, 1955, challenge has been laid to judgment

dated 4.6.2016, rendered by the learned District Judge, Kullu,

District Kullu, HP in HMP No. 74 of 2013 Registration No. 558

of 2013, whereby petition having been filed by the appellant

under Section 13 (1) of the Hindu Marriage Act, for dissolution

of marriage by a decree of divorce, has been dismissed.

2. Facts in brief are that the marriage of appellant and

respondent was solemnized on 14.8.2012, as per local customs

of the area at Hadimba Temple, Manali. It is also not in dispute

that no issue was born out of their wedlock. Both the parties

lived together as husband and wife for some time and during

this period, they stayed with maternal grand-mother of

respondent at Manali. But, subsequently, appellant filed a

1
Whether the reporters of Local Papers may be allowed to see the judgement?

14/09/2017 12:35:58 :::HCHP
2

petition for divorce against the respondent, alleging therein that

after 2-3 months of the marriage, he came to know that

.

respondent was addicted to alcohol and drugs. Appellant further

claimed that he repeatedly persuaded respondent not to indulge

in such habits, but she did not adhere to it, rather, he was given

beatings under the influence of liquor. It also emerges from the

record that matter also came to be reported to the State Women

Commission, Himachal Pradesh, Shimla, on whose directions,

matter was referred to the Superintendent of Police, Kullu, who

further directed the SHO, Police Station, Kullu, to conduct

inquiry. Though, the parties settled the matter before SHO,

Police Station Kullu, but it appears that parties were not able to

live together for quite long. Aforesaid allegations as made by

appellant were denied by the respondent in her written

statement/ reply filed before the Court below. Learned District

Judge, Kullu, vide judgment dated 4.6.2016, dismissed the

petition for divorce, preferred by the appellant. In the aforesaid

background, appellant, approached this Court by way of instant

proceedings, praying therein for dissolution of marriage by

decree of divorce after setting aside judgment dated 4.6.2016,

passed by learned District Judge, Kullu, District Kullu,

Himachal Pradesh in HMP No. 74 of 2013.

3. Today, during the proceedings of the case, learned

counsel representing the parties, on the instructions of their

respective clients, who are present in the Court, submitted that

14/09/2017 12:35:58 :::HCHP
3

the parties have amicably settled the matter inter se them vide

compromise dated 11.9.2017, annexure A-1 of the application

.

under Section 151 CPC, filed during the course of day itself. In

the aforesaid application, it is prayed by the parties that in view

of compromise dated 11.9.2017, present appeal, under Section

28 of the Hindu Marriage Act, may be converted into petition

under Section 13B of the Act ibid and decree of divorce by way

of mutual consent be passed in the interest of justice.

4. At this stage, it may be noticed that both the parties

have moved application under Section 151 CPC, jointly, through

their counsel stating therein that they have settled the matter

amicably inter se them and they want to dissolve their marriage

by way of mutual consent. Application is taken on record,

Registry to register the same. This Court, solely with a view to

ascertain genuineness and correctness of averments contained

in the application as well as compromise arrived inter se parties,

recorded the statements of both the parties on oath, who are

present in the Court. Nitika (respondent herein) stated on oath

before the Court that, she alongwith her husband (appellant)

has resolved by way of compromise, Annexure A-1, to get the

marriage dissolved by way of mutual consent. She further stated

before the Court, that she has compromised the matter of her

own free will and without there being any external pressure and

she has no objection in case decree of divorce by way of mutual

consent, as prayed for by the appellant, is passed. Respondent,

14/09/2017 12:35:58 :::HCHP
4

who is present in the Court, alongwith her maternal uncle Sh.

Hem Raj Sharma, who is also a witness to the compromise,

.

acknowledged the factum with regard to receipt of Rs.2.00 Lakh

as one time settlement from the appellant. She further stated

before this Court that vide aforesaid compromise, she has

agreed to withdraw the cases registered against the appellant,

under the Protection of Women from Domestic Violence Act, as

well as proceedings under Section 125 CrPC. Appellant, namely

Shashank, also stated on oath that they have resolved to get

their marriage dissolved by way of mutual consent and in terms

of compromise, he has paid Rs.2.00 Lakh to the respondent, in

the presence of Sh. Hem Raj, i.e. maternal uncle of the

respondent. Statements of the parties are taken on record.

5. After having carefully perused averments contained in

the application, jointly moved by the parties, as well as

compromise placed on record, this Court sees no impediment in

accepting the request/prayer made on behalf of both the parties

for dissolution of marriage by way of mutual consent. Since,

both the parties have jointly prayed before this Court, that the

present appeal be converted into petition under Section 13B of

the Act ibid, as they have mutually agreed to dissolve the

marriage, present appeal is ordered to be converted into petition

under Section 13B of the Hindu Marriage Act. Since, instant

appeal is pending before this Court, from 14.6.2016 i.e.

approximately for the last fifteen months, statutory period of six

14/09/2017 12:35:58 :::HCHP
5

months as envisaged under Section 13B of the Act, for granting

decree by mutual consent can be waived, especially when there

.

is no possibility of rapprochement between the parties and

marriage has broken beyond repair. In this regard, it would be

apt to take note of the judgment rendered by the Hon’ble Apex

Court in Veena vs. State (Government of NCT of Delhi) and

another, (2011) 14 SCC 614, wherein the Hon’ble Apex Court

has held as under:

“We have heard the learned counsel for the parties and talked to the
parties. The appellant has filed a divorce petition under Section
13(1)(ia) of the Hindu Marriage Act, 1955, being HMA No.397/2008

which is pending before the Court of Sanjeev Mattu, Additional
District Judge, Karkardooma Courts, Delhi. In the peculiar facts and

circumstances of this case, we deem it appropriate to transfer the said
divorce petition to this Court and take the same on Board. The said
divorce petition is converted into one under Section 13B of the Hindu
Marriage Act and we grant divorce to the parties by mutual consent.”

6. However, in the present case, the parties are in appeal

before this Court, as such, prayer of the parties to convert the

appeal into petition under Section 13B of the Act is required to

be considered accordingly.

7. Otherwise also, it is quite evident from the record that

the parties are not living together since 2013 i.e. for the last

four years. Moreover, this Court, after having interacted with

the parties, sees no possibility of reconciliation inter se parties,

as such, no fruitful purpose would be served in case, the matter

is kept pending for another six months before passing decree of

divorce by mutual consent.

14/09/2017 12:35:58 :::HCHP
6

8. Hon’ble Apex Court in Priyanka Khanna v. Amit

Khanna, (2011) 15 SCC 612, has further held as under:

.

“7. We also see from the trend of the litigations pending

between the parties that the relationship between the
couple has broken down in a very nasty manner and there
is absolutely no possibility of a rapprochement between
them even if the matter was to be adjourned for a period

of six months as stipulated under Section 13B of the
Hindu Marriage Act.

8. We also see from the record that the first litigation
had been fled by the respondent husband on 2-6-2006
and a petition for divorce had also been filed by him in the

year 2007. We therefore, feel that it would be in the
interest of justice that the period of six months should be
waived in view of the above facts.”

9. In this case also, statutory period of six months

deserves to be waived keeping in view the fact that the marriage

between the parties has broken beyond repair and there seems

to be no possibility of parties living together.

10. Consequently, in view of detailed discussion made

herein above, the present appeal is converted into petition

under Section 13B of the Hindu Marriage Act and marriage of

both the parties is ordered to be dissolved by way of mutual

consent. Registry is directed to draw a decree of dissolution of

marriage by mutual consent accordingly. Needless to say, both

the parties shall abide by terms and conditions contained in the

compromise and all the cases pending before the Court(s) below,

shall be withdrawn by the respondent, immediately, in terms of

the compromise.

14/09/2017 12:35:58 :::HCHP
7

11. The appeal, which is now converted into petition under

Section 13B of the Hindu Marriage Act, is disposed of in above

.

terms. Pending applications, if any, are also disposed of.

(Sandeep Sharma)
Judge

September 11, 2017
Vikrant

r to

14/09/2017 12:35:58 :::HCHP

Leave a Comment

Your email address will not be published. Required fields are marked *