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_____________________________________________________________________ vs Kalpana Kumari on 31 December, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.428 of 2018

.
Date of Decision: 31.12.2018

Kamal Kumar ………Petitioner.

Versus

Kalpana Kumari ……….Respondent.
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting1?

For the petitioner : Mr. Kanwar Bhupinder Singh, Advocate.

For the respondent : Mr. Amar Deep Singh, Advocate.

Sandeep Sharma, J. (Oral)

By way of instant petition filed under Section 482 of the

Code of Criminal Procedure, challenge has been laid to order dated

20.6.2018, passed by the learned Additional Sessions Judge, Hamirpur,

in criminal Appeal No. 2 of 2014, whereby learned court below while

partly allowing the appeal having been filed by the petitioner-Kamal

Kumar, set aside order dated 28.2.2014, passed by the learned Chief

Judicial Magistrate, Hamirpur, H.P., whereby learned CJM had awarded

the maintenance allowance to the respondent Smt. Kamla Kumari and

her daughter namely Kusum Bala @ Rs.2,000/- p.m. each, from the date

of filing of the present petition.

Whether reporters of the Local papers are allowed to see the judgment?

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2. Facts, as emerge from the record are that, marriage inter-se

parties was solemnized in the year, 1990 and out of the said wedlock,

.

four children were born but since parties were not able to reside

together on account of certain differences, they started living

separately. Respondent subsequently filed petition under Section 12 of

the Protection of Women from Domestic Violence Act (in short “the

Act”), in the Court learned CJM, Hamirpur, which came to be registered

as Petition (D.V. Act) No. 09 of 2010. Learned court below on the basis

of pleadings adduced on record by the respective parties held the

respondent-wife (Kalpana) and her elder daughter entitled to the

maintenance of Rs. 2,000/- p.m. each to be paid by the present

petitioner from the date of filing of the present petition.

3. Being aggrieved and dis-satisfied with the aforesaid order

passed by the learned Chief Judicial Magistrate, Hamirpur, petitioner

preferred an appeal under Section 29 of the Act in the Court of learned

Additional Sessions Judge Hamirpur, who while partly allowing the

appeal upheld the maintenance awarded in favour of the respondent

Kalpana, whereas he set-aside the amount of maintenance awarded in

favour of the daughter Kusum Bala, who is not party before this Court. In

the aforesaid background, petitioner has approached this Court laying

therein challenge to order dated 20.6.2018, passed by the learned

Additional Sessions Judge, in the instant proceedings.

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4. On the last date of hearing i.e. 4.12.2018, learned counsel

representing the parties, on the instructions of their respective clients,

.

informed this Court that parties have resolved to settle their dispute

amicably inter-se them and as such, on their joint request, this Court

summoned both the parties to the Court.

5. Today, both the parties have come present in the Court.

Petitioner and respondent-wife, on oath stated before this court that

they of their own volition and without there being any external pressure

have resolved to get their marriage dissolved by way of mutual consent.

In this regard they have already imparted instructions to their respective

counsel to move an application under Section 13 (B) of the Hindu

Marriage Act, to be filed in the court of learned Additional Sessions

Judge, Hamirpur, where the petitioner has already filed divorce petition

for dissolution of marriage. Ms. Kalpana Kumari, stated on oath before

this Court that she of her own, has consented to get her marriage

dissolved, but that would be subject to the condition that she will get

sum of Rs. 3.50 lac as permanent alimony. They further stated that they

have no objection in case the decree of divorce by way of mutual

consent is passed in their favour and they would be withdrawing all the

cases filed by them against each other.

6. Mr. Kamal Kumar, fairly acknowledged the factum with

regard to the compromise arrived inter-se parties, whereby he is under

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obligation to pay the aforesaid amount of Rs. 3.50 lac, to the

respondent-complainant on account of permanent alimony.

.

Statements having been made by the parties are taken on record and

in view of the same, learned counsel for the petitioner states that he be

permitted to withdraw the present petition with liberty to file application

under Section 13-B of the Hindu Marriage Act, in the Court of learned

Additional Sessions Judge, Hamirpur,

7. Mr. Amar deep learned counsel for the respondent while

fairly acknowledging factum with regard to compromise arrived inter-se

parties contended that since both the parties have made categorical

statement on oath before this Court with regard to the compromise

arrived at inter-se parties, copy of instant order may be sent to the court

below so that appropriate orders are passed by that court in the

proceedings to be initiated by the parties under Section 13 (b) of the

Hindu Marriage Act.

8. Accordingly, in view of the above, present petition is

dismissed as withdrawn with a direction to both the parties to file

application under Section 13 (B) of the Hindu Marriage Act, in terms of

statements made before this court, in the court of learned Additional

Sessions Judge, Hamirpur, who shall decide the same expeditiously in

accordance with law. Needless to say the parties as per their

statements are also bound to withdraw all the cases filed by them

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against each others and as such, court below while passing decree for

dissolution of divorce by mutual consent, shall specifically include such

.

conditions while passing decree in terms of joint petition filed under

Section 13(B) of the Act Learned counsel for the parties undertake to

cause presence of their respective clients before the court below on

4.2.2019, on which date parties shall remain present in the court below

to enable it to proceed with the matter in accordance with law.

Copy dasti.

31st December, 2018 (Sandeep Sharma),
(Manjit) Judge.

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