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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL (ST) NO.14211/2018
WITH
CIVIL APPLICATION NO.148/2018
Vishal Rajendra Lodha … Appellant
V/s.
Richa Vishal Lodha … Respondent
Mr. Vishal Rajendra Lodha, Appellant in persona
Mr. Hitesh P. Vyas for the Respondent
CORAM: K.K. TATED
B. P. COLABAWALLA,JJ
DATED : MARCH 7, 2019
P.C. :
1 This Family Court Appeal has been filed by the Appellant –
husband challenging the common judgment passed by the Family
Court – II, Pune at Pune dated 3rd February 2018.
2 By the impugned judgment, the petition for divorce filed by
the Respondent – wife was decreed and the marriage between the
Appellant and the Respondent was dissolved by a decree of
divorce u/s.13(1)(ia) of the Hindu Marriage Act, 1955. Apart
from this, the impugned judgment also directed the Appellant –
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husband to return the Stridhan mentioned in paragraph 14 of the
divorce petition to the Respondent – wife within 30 days from the
date of the impugned judgment. Over and above this, a direction
was also passed, that the pen drive containing nude photographs
of the Respondent wife be destroyed after the appeal period is
over. The petition filed by the appellant – husband (Petition
No.PA-498 of 2013) for restoration of conjugal rights was
dismissed.
3 Aggrieved by this judgment, the Appellant has approached
this court. We must mention here that after the filing of the
above Appeal, several orders were passed recording that the
parties were trying to negotiate a settlement.
4 Today, when the matter was called out, the Appellant is
appearing in-person. The Respondent is represented by an
Advocate. Consent Terms dated 7th March 2019 are tendered
before us that are signed by the Appellant as well as the
Respondent and the advocate for the Respondent. These have
been signed after much deliberations and discussions between
the parties as well as the Court. In fact these deliberations have
been taken place for almost one and a half hours. Be that as it
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may, we are pleased to note that the parties have signed the
Consent Terms, under which the parties have agreed that the
marriage between the Appellant and the Respondent dated 6 th
July 2011 stands dissolved by a decree of divorce by mutual
consent u/s.13(B) of the Hindu Marriage Act, 1955. This divorce
by mutual consent is subject to the terms and conditions, as more
particularly set out in clauses 1(a) to 1(l) of the Consent Terms.
5 At the time of signing the Consent Terms, there was an
apprehension on the part of the Appellant that in the event, the
decree for divorce is passed today as per the Consent Terms and
the Respondent, in the meanwhile get re-married before the
quashing of the criminal proceedings (as provided in clause 1(d)
1(d-1) of Consent Terms), serious prejudice would be caused to
the Appellant. To obviate this apprehension, Mr. Vyas, the
learned advocate for the Respondent, on instructions, has stated
that the Respondent undertakes that she shall not re-marry till
the Allahabad High Court quashes the criminal proceedings
against the Appellant or till 7th June 2019 whichever is earlier.
The statement is accepted as an undertaking to this court.
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6 It is clarified that in terms of clause 1(d) and 1(d-1) of the
Consent Terms, the Appellant shall approach the Allahabad High
Court for having his Writ Petition (for quashing of the criminal
proceedings filed against him) to be placed on board. Once the
date is notified, the same shall be intimated to the Respondent at
least 7 days prior thereto to ensure that the Respondent remains
present and consents to the quashing of the criminal
proceedings. In any event, liberty is also granted to the
Respondent to make an Application to the Allahabad High Court
for taking up the Writ Petition for the purpose of quashing the
criminal case filed against the Appellant. It is made clear that,
under any circumstances, the entire process of quashing the
criminal proceedings should be done on/or before 7th June 2019.
7 The next apprehension of the Appellant was that the
Consent Terms provide that the parties agree and undertake not
to file or lodge any civil or criminal complaints/suits/petitions
against each other in future arising from their matrimony. The
Appellant suggested that apart from the parties, even the family
members of the respective parties be included in clause 1(i).
Mr.Vyas, the learned advocate for the Respondent, on
instructions of the Respondent, states that the Respondent has
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no objection, even if the family members are included within the
purview of clause 1(i) of the Consent Terms so as to ensure that
neither the parties nor their family members would institute any
civil or criminal proceedings against each other in future and
arising out of their matrimony. It is, accordingly, so ordered.
8 The Appellant has also requested that these Consent Terms,
once executed, be treated as irrevocable and absolute in nature
unless there is a willful breach of the Consent Terms mentioned
therein by either party. Mr. Vyas has stated that the Respondent
has no objection if these Consent Terms are treated as
irrevocable and absolute in nature unless there is any breach of
any of the terms and conditions of the Consent Terms by either
party. It is, accordingly, so ordered.
9 The last apprehension raised by the Appellant was that in
clause 1(g) of the Consent Terms, the Appellant has undertaken
to destroy the nude photographs as well as mobile phones and
pen drive and any other digital mode of storage on which
photographs, documents etc. are stored. The Appellant submits
that even the Respondent ought to be directed to destroy these
photographs, if any, in her possession. Once again Mr. Vyas, on
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taking instructions from the Respondent, has stated that if any
such photographs are in her possession, same shall also be
destroyed by the Respondent. This statement is also accepted as
an undertaking to this court. It is clarified that the mobile
phones, CDs, pen drives etc given in the custody of the Trial
Court shall also be destroyed by the Trial Court on the signing of
these Consent Terms.
10 Both the parties have signed these Consent Terms before us
and have acknowledged that they have read and understood the
terms of the Consent Terms and that they have been entered into
with their free will and consent. The Consent Terms are taken on
record and marked “X” for identification. The undertakings
given in the Consent Terms are accepted. There shall be decree
of divorce by mutual consent u/s.13(B) of the Hindu Marriage
Act, 1955 in terms of the Consent Terms and in addition to what
we have stated earlier in this order. The Consent Terms taken on
record read thus:
CONSENT TERMS
The Petitioner and the Respondent abovenamed have
settled all the disputes relating to their matrimony as
follows:
1 That the parties herein, during the pendency of
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14211.18-fcast.docthe present appeal have decided to amicably
settle the matrimonial dispute between them by
seeking divorce by mutual consent on following
terms and conditions –
a That the marriage between the Appellant and the
Respondent dated 6th July, 2011, shall stand
dissolved by a decree of divorce by mutual
consent on the signing of this consent terms.
b That the Respondent agrees not to claim any
permanent maintenance or alimony from the
Appellant in future. That thus, the Respondent
waived her right to claim maintenance or
alimony from the Appellant.
c That the Respondent agrees and undertakes not
to claim her Streedhan, in future, as decreed by
the Hon’ble Family Court, Pune, vide its
Judgment and Decree dated 3rd February, 2018.
d That the Respondent had lodged a criminal
complaint against the Appellant and his family
members under sections 420, 406, 504, 506 of
Indian Penal Code, 1860, and section 3 and 4 of
Dowry Prohibition Act. That the Respondent
agrees and undertakes to remain present and
give her consent for quashing of the proceedings
of criminal case no. 11009 of 2014 in Writ
Petition, bearing No.33899/2015, filed by the
Appellant pending before the Hon’ble High Court,
Allahabad, on passing of the order of the divorce
by mutual consent by this Hon`ble Court
(d) (1) .In the event the Respondent does not
appear before the Allahabad High Court, for
quashing of the proceedings of criminal case no.
11009 of 2014 in Writ Petition, bearing
No.33899/2015, filed by the Appellant pending
before the Hon’ble High Court, Allahabad, then
the Appellant will have liberty to file Application
for recall of this present Consent terms.
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e That the Respondent agrees that the application
filed by her before the Hon’ble Family Court,
Pune, bearing Civil M.A. No.62/2018, against the
Appellant herein shall stand disposed on the
order of the mutual consent divorce by this
Hon`ble Court.
f That the Respondent agrees that the execution
application filed by her before the Hon’ble Family
Court, Pune, bearing Dkt. No.65/2018, against
the Appellant herein shall stand disposed on the
order of the mutual consent divorce by this
Hon’ble Court.
g That the Appellant agrees that the pen drive
containing the nude photographs of the
Respondent be destroyedas decreed by the
Hon’ble Family Court, Pune, vide its Judgment
and Decree dated 3rd February, 2018.That the
Appellant and respondent further undertakes to
destroy the mobile, CDs, the pen drives and/ or
any other form of digital media storage on which
copies of said photographs of Respondents are
stored or copied, thereof containing the alleged
photographs of the Respondent herein.
h That the parties hereunto have exchanged their
respective articles and belongings with each
other. That neither party shall claim any right in
each others’ moveable as well as immoveable
properties in future. That the Respondent herein
shall not claim any Streedhan against the
Appellant in future.
i That the parties agrees and undertakes unto
each other that neither of them will file or lodge
any Civil or Criminal complaint/suit/petition
against each other in future, arising out of their
matrimony.
j That the parties agrees and undertakes not to
interfere in each other’s personal as well as
professional life in future.
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14211.18-fcast.dock That the parties hereunto have unconditionally
and unequivocally withdrawn the allegations
made against each other in all the present and
past litigations between them.l Both the parties agree and confirm that, in the
above terms this Hon`ble Court be pleased to
pass Decree of dissolution of marriage u/s 13 B of
Hindu Marriage act.In the witness above composition both parties signed
this Consent Terms on 13th day of August 2018 and
present to the court for disposal of the pending
proceedings between them.11 In view of these Consent Terms and what is stated by us
hereinabove, the decree of divorce by mutual consent is hereby
granted u/s.13(B) of the Hindu Marriage Act, 1955. Accordingly,
the impugned order is substituted by the Consent Terms read
along with this order.
12 In view of the Consent Terms already executed between the
parties and the decree of divorce being granted pursuant thereto,
nothing survives in the Civil Application and same is disposed of
accordingly.
13 It is clarified that the Family Court Appeal is kept on 14th
June 2019 under the caption "for compliance" to ensure that the
Writ Petition filed for quashing of the criminal proceedings in the
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14211.18-fcast.docAllahabad High Court is allowed, as recorded in the Consent
Terms.
14 Place this appeal on board on 14th June 2019 at 2.45 pm. in
Chamber, for compliance.
(B. P. COLABAWALLA,J) (K. K. TATED, J)
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