Gujarat High Court
Anandkumar Jashbhai Patel vs Nitalben Daughter Of Vinubhai ... on 24 March, 2015
Author: A.J.Desai
Bench: A.J.Desai
C/SA/42/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 42 of 2015
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ANANDKUMAR JASHBHAI PATEL....Appellant(s)
Versus
NITALBEN DAUGHTER OF VINUBHAI CHHOTABHAI PATEL....Respondent(s)
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Appearance:
MR HM PARIKH, ADVOCATE for the Appellant(s) No. 1
MR RASESH H PARIKH, ADVOCATE for the Appellant(s) No. 1
MR DN PANDYA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 24/03/2015
ORAL ORDER
1. Admit. Mr.D.N.Pandya, learned advocate waives service of notice of admission on behalf of respondent - State.
2. Mr.H.M.Parikh, learned advocate has identified the appellant / original plaintiff, who is present in the Court, and likewise, Mr.D.N.Pandya, learned advocate has identified the respondent / defendant, who is present in the Court. Affidavit of respondent namely Nitalben daughter of Vinubhai Chhotabhai Patel is taken on record.
3. Consent terms filed by the respective parties and duly signed by the learned advocates for the respective parties is also taken on record.
4. The matter is taken up for final hearing in view of consent terms as well as affidavit filed by the respondent.
5. The brief facts arise from the record are as under:
Page 1 of 7 C/SA/42/2015 ORDER5.1 That the parties of the appeal, who are husband and wife, solemnized marriage on 07.02.2006 at Nadiad as per the Hindu rites and rituals. Both the parties belong to "Charotar Patel"
community.
5.2 After the marriage, both the parties started to reside together at United States of America. Since some difference arose between them, they decided to take divorce according to the customs prevailing in their community.
5.3 Accordingly on 01.08.2011, both of them executed a Divorce Deed, which was notarized by the Government Notary. Since the petition under Section 13(b) of the Hindu Marriage Act could not be filed by the parties, the present appellant filed a Regular Civil Suit No. 188 of 2012 under section 34 of the Specific Relief Act and prayed that order may be passed declaring that the Divorce Deed executed between the parties is a valid document and further be declared that the marriage solemnized between them as dissolved since a valid divorce had been mutually taken by the parties as per their customs.
5.4 The present respondent wife did not remain present before the learned Trial Court. However, learned 3rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, First Class, Nadiad, by judgment and order dated 25.04.2014, dismissed the suit. The said decision was challenged by the appellant by way of filing Civil Appeal No. 61 of 2014 before the Court of learned Principal District Judge, District Kheda at Nadiad. Again the present respondent did not remain present before the learned appellate Court, and therefore, the appeal was dismissed by the learned 2nd Additional District Judge, District Kheda at Nadiad. Hence, the present appeal.Page 2 of 7 C/SA/42/2015 ORDER
6. Mr.H.M.Parikh, learned advocate appearing for the appellant would submit the appellant as well the respondent had already decided to get divorce and accordingly, Divorce Deed was executed on 01.08.2011 (at Exh. 11), which is not in dispute. He would further submit that as per the customs of "Kadva Patidar"
Community, such divorce is legally permissible as has been accepted by the Court of law. He would further submit that now the parties have agreed for declaration that the marriage does not exist between them and the divorce, which has been taken way back in the year 01.08.2011, shall be treated as valid. In support of his case, he relied upon the decision in case of Dipika Amrutlal Patel V. Vishwam Parmanand Patel reported in 2011(1) GLH 457 and would submit that the Hon'ble Division Bench of this Court has accepted the customary divorce as a legal one of "Kadva Patidar" Community and accordingly the decree was passed. He would further submit that the appeal may be allowed and the Divorce Deed executed between the parties may be declared as valid one and may be declared that the relationship between the parties as husband and wife has ceased from the date of execution of Divorce Deed executed between the parties on 01.08.2011.
7. Mr.D.N.Pandya, learned advocate for the respondent would submit that the respondent could not remain present before the concerned trial Court and could not support the case of the appellant. He would further submit that apart from the Divorce Deed executed in the year 2011, again they have entered into one compromise deed on 19.03.2015. He would submit that the prayers made by the appellant may be be accepted.
8. Affidavit of the respondent dated 23.03.2015 reads as under.
Page 3 of 7 C/SA/42/2015 ORDER"I Nitaben, daughter of Vinubhai Chhotabhai Patel, the repsondent / defendant, herein above, do hereby state on solemn affirmation that:
1. I am the respondent / defendant in the subject matter of the appeal before this Hon'ble Court, and am most adversely effected person to assert that we have underrgone the Customary Divorce as prevalent in our community on 1st August, 2011, as the relevant fact on record, and in spite of the insistence before the lower Courts by the appellant that the declaration as prayed for may be granted, which as a matter of course I had to resist, but there appears no clue to end the embargo, and has to come to terms to settle the issue once and for all, and therefore the declaration as prayed for may be granted so that we as responsible individuals in the society could settle down a fresh. Without granting such declaration no further communication in society can be made, appreciated and / or be accepted, which is a hard fact, and cannot be allowed a pass.
2. I say that a further Deed of Compromise has been entered into the parties on 19th March, 2015, with some other and further covenants to be respected by the parties, namely that the divorce is customary and entered into into the presence of friends and relatives, no parties will claim any maintenance; and that all my Page 4 of 7 C/SA/42/2015 ORDER due belonging will be collected from the custody of one Mineshbhai Mahendrabhai Patel of Bhadran, Taluka : Borsad; and that all Civil and/or Criminal Proceedings will be so compromised; and no claim over each other's personal properties will be made; and the same comprised the Consent Terms before this Hon'ble Court.
3. I say that all that I have stated herein above is of may free will and has not been tainted from any influences,. And in witness whereof, this solemn affirmation is drawn on this 23rd March, 2015 at Ahmedabad."
9. Consent Terms arrived at between the parties, which reads as under:
We the parties to the present proceedings have arrived at an amicable settlement deed which is produced herewith.
1. We state that there is a custom of divorce in our community which has been accepted by this Honble Courts in various judgements and hence we had executed a deed of divorce as per the custom on 01.08.2011.
2. As we both have settled in United States of America, it was necessary to obtain a declaratory decree of divorce in view of customary divorce. Hence, appellant has filed Page 5 of 7 C/SA/42/2015 ORDER Regular Civil Suit No.188/2012.
3. We say that a decree in terms of prayed made in the plaint is required to be granted in view of the present consent terms.
4. Under the above circumstances this Hon'ble Court may be pleased to pass a decree declaring that the parties have obtained divorce as per the customary divorce and the marriage between the parties stands dissolved.
The judgement and decree passed by the Trial Court and confirmed by the appellate Court are set aside.
5. Parties to bare their own cost.
10. Learned advocates appearing for the respective parties have, therefore, requested to pass appropriate orders in the matter.
11. Heard learned advocates appearing for the respective parties. I have also inquired from the parties, who are present in the Court, about the Divorce Deed dated 01.08.2011, the consent terms arrived at between the parties as well as the Compromise Deed dated 09.03.2015 arrived at between the parties, which is in vernacular language. Both of them have stated before this Court that what have been stated in all these three documents are correct facts and therefore, they have requested to pass appropriate orders.
I have also considered the judgement delivered by the learned Trial Court as well as the learned Appellate Court. It is an admitted position that both the parties from "Kadva Patidar"
Page 6 of 7 C/SA/42/2015 ORDERcommunity . In "Kadva Patidar" community, customary divorce is permissible as held by the Division Bench of this Court in case of Dipika Amrutlal Patel V. Vishwam Parmanand Patel (Supra).
11. In view of the above facts and when the parties have agreed for customary divorce way back in the year 2011 and again confirmed it in the year 2011 and when the customary divorce is permitted in their community, I am of the opinion that present appeal requires consideration and accordingly is allowed. The Notarized Divorce Deed dated 01.08.2011 is hereby accepted and treated as valid as per the customs prevailing in the "Charotar Patel"
community and the marriage between the parties is treated as dissolved with effect from 01.08.2011 and the parties are hereby ceases to be husband and wife.
12. Office is hereby directed to prepare the decree accordingly forthwith.
13. Direct service is permitted.
(A.J.DESAI, J.) *Kazi...
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