Rajasthan High Court - Jaipur
Nand Kanwar vs Rajendra Singh Bhati on 9 May, 2005
Equivalent citations: II(2005)DMC281, RLW2006(1)RAJ201
Author: S.K. Keshote
Bench: S.K. Keshote, Ajay Rastogi
JUDGMENT S.K. Keshote, J.
1. Rajendra Singh Bhati, the appellant in D.B. Civil Miscellaneous Appeal No. 1606/2002 and respondent in D.B. Civil Miscellaneous Appeal Nos. 167/2003 and 1112/1997 (hereinafter shall be referred to as 'the husband'), filed a Matrimonial Case No. 92/2000 in the Family Court No. 2, Jaipur against Smt. Nand Kanwar, the respondent in D.B. Civil Miscellaneous Appeal No. 1606/2002 and the appellant in D.B. Civil Miscellaneous Appeal Nos. 167/ 2003 and 1112/1997 (hereinafter shall be referred to as 'the wife'), In the matrimonial case the wife filed an application under Section 24 of the Hindu Marriage Act, 1955 (for short, 'the Act, 1995'), on 6.10.2001; the learned Family Court No. 2, Jaipur, ordered against the husband to pay to the wife the interim maintenance at the rate of Rs. 800/- per month. The learned Family Court No. 2, Jaipur, dismissed the Matrimonial Case No. 92/2000, vide its judgment and decree, dated 13.8.2002. The husband challenged that judgment and decree of the learned Family Court No. 2, Jaipur, in D.B. Civil Miscellaneous Appeal No. 1606/2002.
2. The wife filed D.B. Civil Miscellaneous Appeal No. 167/2003 against the order, dated 13.8.2002, of the learned Family Court No. 2, Jaipur, in Case No. 92/ 2000, for enhancement of the amount of interim maintenance.
3. The husband filed the Matrimonial Case No. 108/1994 under Section 9 of the Act, 1955 for a decree of restitution of conjugal rights; same was decided by the learned Family Court, Jaipur, under its judgment and decree, dated 21.6.1997 and thereunder the learned Family Court passed the decree for restitution of conjugal rights, hence the wife, against the judgment and decree, has filed D.B. Civil Miscellaneous Appeal No. 1112/2002.
4. In D.B. Civil Miscellaneous Appeal No. 167/2003, this Court, under its order, dated 20.7.2004, directed the husband to pay to the wife the interim maintenance of Rs. 2,000/- per month from 1.6.2004.
5. The parties have arrived at the settlement in all these matters and have filed a joint application, dated 20.1.2005, under the title "Application under Section 151, C.P.C. for one time final settlement and compromise between both parties in the above mentioned miscellaneous appeal as well as in two other matters pending in Family Court, Ajmer and in the Court of Judicial Magistrate (Jr. Div.), Kishangarh (Ajmer)".
6. The Deputy Registrar (Judicial) has attested the said compromise application on 20.1.2005.
7. The learned Counsel for the wife admitted that she has received the draft referred to in para No. 3 of the said compromise application and the total amount of the draft is Rs. 2,00,000/- (Rupees two lacs). This amount is of permanent alimony towards the full and final settlement thereof. The parties are living separately for the last more than two years; they are litigating for the last many years and in our opinion there is an irretrievable break down of their marriage. To live peacefully they decided to get their marriage dissolved by a decree of divorce by mutual consent.
8. We talked to both the parties regarding the settlement of the matter but ultimately they could not settle the same to live together. But, later on, they decided to get their marriage dissolved by a decree of divorce by mutual consent.
9. In addition to these three appeals, two criminal proceedings are also going on between the parties, the details of which are as under:
1. Criminal Case No. 133/98, Nand Kanwar v. Rajendra Singh and Ors., (under Sections 494, 498 and 120-B of the I.P.C.) pending in the Court of Judicial Magistrate, First Class, Kishangarh.
2. Criminal Case No. 63/2003, Nand Kanwar v. Rajendra Singh (under Section 125 of the Criminal Procedure Code) pending in the Family Court, Ajmer.
10. The records of both the cases aforesaid are summoned.
11. In the compromise/settlement application the wife has agreed to withdraw the proceedings of these criminal cases and the relevant averments are in para Nos. 5 and 6, which read as under:
"5. That Smt. Nand Kanwar has also agreed to submit a compromise before the learned Judicial Magistrate (Jr. Div.) Kishangarh, Ajmer, in the case pending trial for the offence under Section 498A, I.P.C., against me and she has agreed not to proceed with the criminal proceedings before any other Court of Law in due course against me.
6. That the applicant Smt. Nand Kanwar has also agreed to withdraw the proceedings pending before the learned Family Court, Ajmer regarding maintenance allowance against me."
12. The wife, on the direction of the Court, submitted details of expenses incurred by her on different litigations either filed by her or by the husband against her.
13. The details of expenses incurred by the wife speak sorry state of affairs. Though a woman is entitled for free and competent legal services under Section 12 of the Legal Services Authority Act, 1987, this poor lady has suffered a lot and incurred heavy amount towards expenses on litigation. In case this class of litigant is not given the real benefit of free and competent legal services, the enactment of the Act, 1987, will not be of any real and effective help to them. Be that as it may be, it is not a matter for consideration in these proceedings.
14. Though in the application all the ingredients of Section 13B and Section 23 of the Act, 1955 are not specifically pleaded but we have talked to both the parties and are satisfied that they are living separately for more than one year; they are not able to live together and have mutually agreed for dissolution of their marriage by a decree of divorce by mutual consent. We are also satisfied that the mutual consent of the husband and wife for dissolution of their marriage by a decree of divorce, has not been obtained by fear, force, fraud or undue influence. The parties have filed litigation after litigation. Looking to their conduct, it is not gainsay, we are of the opinion that there is an irretrievable breakdown of their marriage and there is no scope of settlement between them.
15. As a result of the aforesaid discussion, the joint application filed by the husband and the wife for dissolution of their marriage by a decree of divorce by mutual consent, is allowed; their marriage, solemnized on 9.3.1989 at Village Gidani, Tehsil Dudu, District Jaipur, is dissolved by a decree of divorce. The parties are free in all respects.
16. Where the wife has agreed to submit the compromise application and withdraw the criminal cases referred to above, of which original records are here, it will be in the larger interest of justice as well as both the parties that those matters are disposed of here as, in our opinion, continuity of those proceedings will unnecessarily costs to her.
17. Accordingly the Criminal Case No. 133/98, Nand Kanwar v. Rajendra Singh and Ors., under Sections 494, 498 and 120B of the I.P.C., pending in the Court of Judicial Magistrate, First Class, Kishangarh, District Ajmer, is dismissed and the accused are discharged of the charges levelled against them. The Criminal Case No. 63/2003, Nand Kanwar v. Rajendra Singh, under Section 125 of the Cr. P.C., pending in the Family Court, Ajmer, is also dismissed in view of the compromise/settlement entered into between the parties.
18. As a result of the dissolution of the marriage of the parties by a decree of divorce by mutual consent, the D.B. Civil Miscellaneous Appeal Nos. 167/2003 and 1606/2002 have become infructuous and the same are dismissed.
19. In view of the compromise/settlement entered into between the parties for dissolution of their marriage by a decree of divorce by mutual consent, the D.B. Civil Miscellaneous Appeal No. 1112/2002, filed by the wife against the judgment and decree, dated 21.6.1997, of the learned Family Court, Jaipur in Matrimonial Case No. 108/1994, is allowed. The judgment and decree, dated 21.6.1997 passed in Matrimonial Case No. 108/1994, thereby the learned Family Court, Jaipur allowed the petition under Section 9 of the Hindu Marriage Act, 1955, is quashed and set aside. In view of this order, the stay applications filed along with D.B. Civil Miscellaneous Appeal No. 1112/2002, also stand disposed of.
20. The learned Family Court No. 2, Jaipur, is directed to draw a decree accordingly and give the copy thereof to each of the parties at free of costs.