Rajasthan High Court - Jaipur
Smt Deepa Sahu vs Harshvardhan on 3 December, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No.6140/2016
Smt. Deepa Sahu W/o Harshvardhan, B/c Sahu (Teli), R/o
Keshar Bagh, Police Line Circle, Kota.
----Appellant
Versus
Harshvardhan S/o Jagdish Narayan Rathor Baruniya, R/o Village
Jhilai, Bapu Bajar, Tehsil Niwai, Dist, Tonk (Raj.)
----Respondent
Connected With D.B. Civil Miscellaneous Appeal No. 569/2017 With D.B. Civil Misc. Stay Application No.442/2017 Deepa Sahu W/o Harshvardhan D/o Hanuman Prasad B/c Sahu (Teli), R/o Masji Ki Gali, Kesar Bagh, Police Line Crossing, Kota Raj
----Appellant Versus Harsvardhan S/o Jagdish Narayan B/c Sahu (Teli) R/o Village Jhilai, Tehsil Niwai, District Tonk Raj
----Respondent For Appellant(s) : Mr. Sunil Jain and Mr. Raj Kumar Suthar for appellant-wife Deepa Sahu For Respondent(s) : Mr. T.R. Meena for respondent-
husband HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment/Order 03/12/2018 The appeal being D.B. Civil Miscellaneous Appeal No.6140/2016 on behalf of the appellant-wife Smt. Deepa Sahu has been filed under Section 19 of the Family Court Act, 1984, challenging the judgment and decree dated 26.09.2016 passed by the learned Judge, Family Court No.3, Kota, whereby the petition (2 of 4) [CMA-6140/2016] filed by the appellant-wife under Section 13 of the Hindu Marriage Act, 1955, has been dismissed.
The appeal being D.B. Civil Miscellaneous Appeal No.569/2017 on behalf of the appellant-wife Smt. Deepa Sahu has been filed under Section 19 of the Family Court Act, challenging the judgment and decree dated 08.12.2016 passed by the learned Judge, Family Court, Tonk in Case No.118/2016 (registered 246/2013, 43/2011 (District Court), whereby the application filed by the respondent-husband under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been allowed.
This matter has come up on the board for orders on the joint application filed by both the parties bearing inward no.85676/02.11.2018. In the application it is mentioned that during the pendency of the appeals, the appellant-wife filed a criminal revision being S.B. Criminal Revision Petition No.1328/2017 before this court and the learned Single Judge sent the matter to the Mediation Center attached to this court. Both the parties appeared before the Mediation Center on 16.08.2018, where they expressed their willingness to compromise the matter by mutual consent. Pursuant thereto, both the parties have compromised the matter. A certified copy of the compromise dated 16.08.2018 entered into between the parties, which was reduced in writing in the proceedings dated 16.08.2018 of the Mediation Center attached to this court, has been placed on the record along-with the application as Annexure-1.
"1. nksuksa i{kdkjku esa ;g lgefr cuh gS fd nksuksa i{k viuh&viuh vihy o jhfotu eku~uh; mPp U;k;ky; ds le{k izkFkZuk djrs gq, okil dj ysxsa rFkk Jherh nhik lkgw }kjk izLrqr dh xbZ rykd ;kfpdk dh vihy esa vkilh lgefr ls fookg foPNsn dk izkFkZuk&i= is'k dj fuLrkfjr djok ysxsaA (3 of 4) [CMA-6140/2016]
2. nksuksa i{kdkjku esa ;g Hkh lgefr cuh gS fd Jherh nhik lkgw /kkjk 125 n.M izfØ;k lafgrk ds rgr ikfjr vkns'k ds vuqlkj olwyh ;ksX; leLr jkf'k ekQ dj nsxh os ,d Hkh :i;k Jh g"kZo/kZu ls izkIr djus ds fy, fdlh U;k;ky; esa dksbZ izkFkZuk&i= is'k ugha djsxh rFkk Hkfo"; esa /kkjk 125¼3½ n.M izfØ;k lafgrk ds rgr Hkh fdlh Hkh U;k;ky; esa izkFkZuk&i= is'k ugha djsxhA
3. nksuksa i{kdkjku esa ;g Hkh lgefr cuh gS fd ifr Jh g"kZo/kZu }kjk is'k fd;s x;s izkFkZuk&i= vUrxZr /kkjk 127 n.M izfØ;k lafgrk bl jkthukek ds izdk'k esa fuLrkfjr djokus esa ,d&nwljs dks lg;ksx iznku djsxsa rFkk Hkfo"; esa Jherh nhik lkgw fdlh izdkj ds LFkk;h Hkj.k&iks"k.k dh ek¡x ugha djsxhA
4. nksuksa i{kdkjku esa ;g Hkh lgefr cuh gS fd Jherh nhik lkgw dh iq=h [kq'kh tks fd orZeku esa Jh g"kZo/kZu ds lkFk fuokl dj jgh gS] Jherh nhik lkgw mldh vfHkj{kk ds lEcU/k esa dksbZ fookn ugha djsaxh rFkk Hkfo"; esa Hkh iq=h [kq'kh vius firk ds lkFk gh jgrh jgsxh rFkk mlds 'kknh C;kg dh leLr ftEesnkjh Hkh mlds firk dh gh gksxhA iq=h [kq'kh viuh ek¡ ls dksbZ Dyes ugha dj ldsxhA vr% nksuksa i{kdjksa }kjk mDr le>kSRkk iw.kZ gks'k gok'k esa fcuk fdlh ncko ds LosPNkiwoZd bl e/;LFkrk dsUnz esa eq> e/;LFk ds le{k gLrk{kfjr dfd;k x;k gSA vr% i{kdkjksa ls vis{kk dh tkrh gS fd fu;ekuqlkj mDr le>kSrk dh ikyuk djrs gq;s nhokuh@QkStnkjh o vU; izdj.k dks lekIr djsxsaA vr% nksuksa i{kdkjksa dh lgefr ls ;g le>kSrk i= gLrk{kfjr fd;k tk jgk gS tks 'kkfey i=koyh gksA"
The compromise has been signed by both the parties, their respective counsels as also the learned Mediator on 16.08.2018.
In the application, the prayer is made by both the parties for converting the application of Section 13 (1A) into 13(B) of the Hindu Marriage Act and to pass a decree of divorce by mutual consent keeping in view the fact that their marriage has reached the stage of irretrievable broken down.
Both the parties submitted that even a petition under Section 13 of the Act, on joint request of the parties, can be converted into one under Section 13-B of the Act for grant of decree of divorce by mutual consent. In support of this submission, learned counsel relied on the judgments of the Supreme Court in Veena Vs. State Govt. of NCT, Delhi & Anr., (2011) 14 SCC 614, Devinder Singh Narula Vs. Meenakshi Nangia - (2012) 8 SCC 580, and Amardeep Singh Vs. Harveen Kaur - (2017) 8 (4 of 4) [CMA-6140/2016] SCC 746. In Amardeep Singh, supra, the Supreme Court laid down that since the cooling off period mentioned in Section 13- B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
In view of the compromise arrived at between the parties, we are persuaded to allow the appeals. The appeals are accordingly allowed. The judgment and order dated 26.09.2016 of the Family Court No.3, Kota in Case No.12/2016 (impugned in CMA No.6140/2016) and judgment and order dated 08.12.2016 of the Family Court, Tonk in Case No.118/2016 (re-registered) {246/2013, 43/2011 (District Court)} are set side. The marriage between appellant-wife and respondent-husband is therefore dissolved by mutual consent with immediate effect in terms of the compromise quoted above. Decree of divorce be prepared accordingly.
This also disposes of the stay application as also the application bearing inward no.85676 dated 02.11.2018.
A copy of this order be placed in the connected file. (GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J //Jaiman//18-19 Powered by TCPDF (www.tcpdf.org)