IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
FAO(HMA) No. 280 of 2016
Decided on: September 11, 2017
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Shashank …Appellant
Versus
Nitika ..Respondent
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Coram
The Hon’ble Mr.Justice Sandeep Sharma, J.
Whether approved for reporting ?1yes.
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For the appellant Mr. Maan Singh, Advocate.
For the Respondent Mr. Ashwani Kaundal, Advocate.
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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
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Whether the reporters of Local Papers may be allowed to see the judgement?
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petition for divorce against the respondent, alleging therein that
after 2-3 months of the marriage, he came to know that
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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
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the parties have amicably settled the matter inter se them vide
compromise dated 11.9.2017, annexure A-1 of the application
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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,
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who is present in the Court, alongwith her maternal uncle Sh.
Hem Raj Sharma, who is also a witness to the compromise,
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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
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months as envisaged under Section 13B of the Act, for granting
decree by mutual consent can be waived, especially when there
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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.397/2008which is pending before the Court of Sanjeev Mattu, Additional
District Judge, Karkardooma Courts, Delhi. In the peculiar facts andcircumstances 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.
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8. Hon’ble Apex Court in Priyanka Khanna v. Amit
Khanna, (2011) 15 SCC 612, has further held as under:
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“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 periodof 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 theyear 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.
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11. The appeal, which is now converted into petition under
Section 13B of the Hindu Marriage Act, is disposed of in above
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terms. Pending applications, if any, are also disposed of.
(Sandeep Sharma)
Judge
September 11, 2017
Vikrant
r to
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