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Nikhil @ Appu S/O Shri Naval Kishor vs Smt. Neha @ Monika W/O Shri Nikhil @ … on 18 October, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No.752/2019

Nikhil @ Appu S/o Shri Naval Kishor, Aged About 30 Years, R/o
24, Kanhiya Lal Nursry, Badanpura, Jaipur, Police Station
Brahampuri.
—-Appellant
Versus
Smt. Neha @ Monika W/o Shri Nikhil @ Appu D/o Radha Kishan
Gupta, Aged About 26 Years, R/o Near Kiran Nursing Home,
Nidhivan Colony, Krishi Upaj Mandi Road, Police Station Kotwali
District Dausa.
—-Respondent

For Appellant(s) : Shri Rajeev Surana
For Respondent(s) : Shri Sanjay Sharma

HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

ORDER RESERVED ON 23/09/2019
ORDER PRONOUNCED ON 18/10/2019

BY THE COURT : (PER HON’BLE DHADDHA, J.)

1. This appeal has been filed by the appellant husband

against the order of the learned Family Court No.1, Jaipur passed

on 9.1.2019 in which an application was filed by the appellant to

convert the petition of divorce u/s 13 of the SectionHindu Marriage Act

(for short “HMA”) into mutual consent divorce petition u/s 13B of

the HMA.

2. By this appeal, the appellant also seeks permission to

withdraw the following petitions; (i) Petition No.670/2017 filed u/s

12 and 23 of the Protection of Women from SectionDomestic Violence Act,

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2005 for maintenance pending before the learned Chief Judicial

Magistrate, Dausa, (ii) Petition No.54/2018 filed u/s 24 of the HMA

pending before the learned Family Court, Jaipur, (iii) Petition

No.1/2019 filed u/s 125 SectionCr.P.C. for maintenance pending before

the learned Family Court, Dausa and (iv) Petition No.2/2019

pending before the leaned Family Court, Dausa for interim

maintenance.

3. Brief facts giving rise to this appeal are that marriage

of appellant and respondent was solemnized on 13.7.2016 as per

Hindu rites and customs. After three days of the marriage, the

respondent wife started torturing the appellant husband both

physically and mentally. She also threatened to involve the

appellant in false cases. She also lodged an FIR No.9/2017 at

Police Station Mahila Thana, Dausa for offence u/s 498A, 406,

323, 377 SectionIPC and Sectionsection 4/Section6 of Dowry Prohibition Act, 1961

against the appellant and his family members. Thereafter, on

13.4.2017 a compromise for mutual consent for divorce u/s 13B of

HMA was entered into between them for amount of

Rs.10,50,000/-. The entire matter was to resolve in pursuance to

the said compromise and the appellant had paid Rs.5,25,000/- by

Demand Draft No.349468 dated 10.4.2017 and the rest amount

was to be paid through Demand Draft at the time of filing of

application u/s 13B of the HMA for mutual consent divorce. Final

Report was submitted in FIR No.9/2017 which had been accepted

on 16.5.2017. The respondent wife did not comply with the

compromise and filed a case under Protection of Women from

SectionDomestic Violence Act before the learned Chief Judicial Magistrate,

Dausa on 6.10.2017. The respondent wife concealed the fact of

compromise. Thereafter, the appellant was constrained to file

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divorce petition u/s 13 of the HMA before the learned Family Court

on the ground of cruelty. During proceedings, another compromise

was made between them before the learned Family Court by which

appellant husband had to pay Rs.13,25,000/- (including already

paid Rs.5,25,000/-). According to condition, Rs.4,00,000/- was to

be deposited in the learned Family Court by way of Demand Draft

at the time of filing of application u/s 13B of the HMA for mutual

consent of divorce and rest amount of Rs.4,00,000/- was to be

paid at the time of final decree. The appellant was ready and

prepared to pay Rs.4,00,000/- but the respondent wife resiled

from compromise. She wanted to take more money from the

appellant. The matter was again compromised between them

before the mediator – DLSA, Dausa on 4.1.2019 in which the

respondent wife demanded Rs.10,50,000/- excluding the amount

already received as Rs.5,25,000/-. Out of which, Rs.7,50,000/-

was to be paid by way of Demand Draft before the learned Family

Court on filing of petition u/s 13B of the HMA on 8.1.2019 and rest

of the amount Rs.3,00,000/- would be paid at the time of final

settlement. It was also decided that she would not claim any

maintenance amount in future and the cases pending between

them, would be withdrawn. On 8.1.2019, the appellant was

present in the learned Family Court, Jaipur for filing petition along

with Demand Draft of Rs.7,50,000/- but the respondent wife did

not come to the court. On 9.1.2019, she filed an application to

withdraw the compromise. Respondent wife increased the

compromised amount three times. She dishonestly harassed the

appellant by demanding more and more money and filing false

cases against him. She filed a new case for maintenance u/s 125

SectionCr.P.C. before the learned Family Court, Dausa.

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4. Learned counsel for the appellant submitted that the

respondent wife had lodged criminal case against the appellant

and his family members under Sections 498A, Section406, Section323, Section377 IPC

and Sectionsection 4/Section6 of the Dowry Prohibition Act, 1961. On

13.04.2017, compromise was arrived at between the parties. The

appellant was to be paid Rs.10,50,000/- as permanent alimony

and marriage expenses. Pursuant to the said compromise, the

appellant had paid Rs. 5,25,000/- by Demand Draft No.349468

dated 10.4.2017 and rest of the amount was to be paid at the

time of filing of application u/s 13B of the HMA for mutual consent

divorce but the respondent resiled from the compromise after

taking Rs.5,25,000/- and filed a case under the Protection of

Women from SectionDomestic Violence Act before the Chief Judicial

Magistrate, Dausa by concealing the fact of compromise. After

that, the appellant filed a divorce petition against the respondent

on the ground of cruelty. During proceedings, another compromise

was made between them. By that compromise, the respondent

wife enhanced the amount of compromise of Rs.8,00,000/-

excluding the amount already received by Demand Draft as

Rs.5,25,000/-. According to that compromise, Rs. 4,00,000/- was

to be paid by way of Demand Draft before the learned Family

Court at the time of filing of application u/s 13B of HMA for mutual

consent for divorce and rest amount of Rs. 4,00,000/- was to be

paid at the time of final decree. The appellant was ready and

prepared to pay Rs. 4,00,000/- but the respondent wife resiled

from that compromise. She wanted to extract more money from

the appellant. She had filed petition u/s 125 SectionCr.P.C. before the

learned Family Court- DLSA, Dausa. On 04.01.2019, the matter

was again compromised between them in which respondent wife

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demanded Rs.10,50,000/- excluding the amount already received

as Rs.5,25,000/-. The appellant was to pay Rs.7,50,000/- by way

of Demand Draft before the learned Family Court on filing of

petition under Section 13-B of HMA on 08.01.2019 and rest

amount of Rs.3,00,000/- would be at the time of final settlement.

Learned counsel for the appellant submitted that the respondent

did not come to file mutual consent divorce petition before the

learned Family Court No.1, Jaipur on 08.01.2019. On 09.01.2019,

she filed an application to withdraw the compromise.

5. Learned counsel for the appellant submitted that the

respondent wife had increased the compromised amount three

times. She dishonestly harassed the appellant by demanding more

and more money and filing false cases against him.

6. Learned counsel for the appellant submitted that the

appellant is ready to pay the settled amount of Rs. 10,50,000/-

but the purpose of the respondent was to harass the appellant

husband which cannot be permitted in the eye of law. The action

of the respondent wife in not accepting the compromise in its

letter spirit and again retracting. She made the proceedings of

the courts just to mockery.

7. Learned counsel for the appellant, in support of his

arguments, placed reliance on the following judgments:-

1. Ruchi Agarwal v/s Amit Kumar Agrawal and
Ors., Criminal Appeal No.1274/2004, decided on
5.11.2004, by Apex Court,

2. Mukesh Jangid v/s The State of Rajasthan
Anr. and two other connected matters, S.B. Cr.
Misc. Petition No.4737/2014, decided by this
Court on 22.9.2016,

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3. K. Srinivas Rao v/s D.A. Deepa, Civil Appeal
No.1794/2013, decided on 22.2.2013 by Apex
Court,

4. Shanti Budhiya Vesta Patel Ors. v/s
Nirmala Jayprakash Tiwari Ors., reported in
RLW 2010(2) RJ 100 (SC) and

5. Shyam Sunder v/s Smt. Krishna Verma, D.B.

Civil Miscellaneous Appeal No.861/2018, decided
on 19.12.2018, by this Court.

8. Learned counsel for the respondent submitted that the

appellant was not satisfied with the marriage and he tortured the

respondent for want of dowry. The respondent lodged FIR against

the appellant and his family members. During pendency of

proceedings, parties entered into agreement for mutual settlement

in which the appellant would pay Rs.10,50,000/- and for jewelry

Rs.8,00,000/- but the appellant refused to accept the said

agreement. However, he paid Rs.5,25,000/- and rest of the

amount plus ornaments were to be paid at the time of filing of

application u/s 13B of the HMA. The appellant retracted from

agreement and thus application u/s 13B of the HMA could not be

filed. But the appellant mischievously utilized the agreement and

submitted it to the Police Authorities. So, the FR was presented

by police. Due to non-compliance of the agreement, the

respondent was compelled to file complaint u/s 12 of the

Protection of Women from SectionDomestic Violence Act on 6.10.2017

and Rs.7,000/- per month was awarded towards maintenance.

The appellant filed a false petition for divorce against the

respondent in which parties entered into agreement on 15.6.2018

but both the parties did not agree to the agreement and filed

application before the learned Family Court not to take effect of

agreement dated 15.6.2018. On 4.1.2019, before the ADR centre

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Dausa, both the parties entered into agreement for payment of

Rs.15,75,000/- plus ornaments worth Rs.8,00,000/-. However,

under the proceedings, the issue regarding refund of ornaments

worth Rs.8,00,000/- was not recorded. The appellant was not

having fair intention to comply with the agreement, the

respondent filed an application before the learned Family Court,

Jaipur for recording her dissatisfaction of the settlement. Learned

counsel for the respondent submitted that the dispute amongst

the parties persists regarding settlement of sum of alimony and

refund of “Stridhan”. The appellant had not approached the court

with clean hands. He did not have intention to refund the

“Stridhan” to the respondent. So, the appeal be dismissed.

9. We have heard the learned counsel for the parties,

gone through the impugned order and perused the material

available on record.

10. It is evident from the record that both the parties had

entered into agreement for mutual settlement three times but

could not be materialized. According to the appellant, the

respondent wife dishonestly resiled from the compromise three

times. According to the respondent, the appellant did not want to

perform his part according to the compromise. Therefore, she had

to file an application recording dissatisfaction of the settlement.

The appellant had filed divorce petition against the respondent on

the ground of cruelty. In his petition, he stated that the

respondent had lodged false report against him and his family

members. After that, the respondent had built pressure and

received Rs.5,25,000/-. He also stated in the petition that the

respondent had resiled from the compromise. So, it would be

amount to cruelty. In the present case, both the parties are

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alleging each other for non-compliance of the agreement. In our

opinion, who is resiling from the compromise, it will be decided by

the learned Family Court after taking evidence of the parties. The

cases relied upon by the learned counsel for the appellant do not

support him on account of difference of facts.

11. In the case of Ruchi Agarwal’s (supra), Apex Court

observed that the husband and wife obtained the decree of

divorce by mutual consent. According to the compromise, wife was

to withdraw criminal cases against the husband but wife resiled

from the compromise and did not withdraw the criminal cases so

the Apex Court quashed the criminal proceedings against the

husband.

12. In the case of Mukesh Jangid’s (supra), both the

parties obtained decree of divorce by mutual consent so the High

Court quashed the criminal proceedings according to the

compromise.

13. In the present case, the parties are not agree to comply

with the compromise. Therefore, the learned Family Court had

rightly rejected the application filed by the appellant to convert

the present petition u/s 13 of HMA into section 13B of the HMA for

mutual consent of divorce. Therefore, the appeal being devoid of

merit, is liable to be rejected.

14. Accordingly, the appeal along with stay application is

dismissed.

(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J

RAJ KUMAR CHAUHAN /17

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