Rajasthan High Court - Jaipur
Shri Siddarth Motwani S/O Sh. ... vs Smt Aastha Wadhwa W/O Shri Siddarth ... on 10 May, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 2084/2019
Shri Siddarth Motwani son of Sh. Chanderbhan Motwani, age 36
Years, resident of 578, G-Block, Makarwalli Ajmer, Rajashan at
present residing At Arapaho Rd. Dallas Texas- Usa
----Appellant
Versus
Smt Aastha Wadhwa wife of Shri Siddarth Motwani daughter of
Late Shri Subhash Chand Wadhwa, age 32 Years, resident of
Rukmani Garden, Shiv Marg, Banipark, Jaipur at present residing
at C/o Manish Sharma A-11, Ground Floor, Mahendru Enclave,
Delhi
----Respondent
For Appellant(s) : Mr. J.P. Goyal, Senior Counsel assisted by Mr. Abhi Goyal.
Mr. Siddarth Motwani, appellant present in person.
For Respondent(s) : Mr. Ankit Bishnoi.
Mrs. Aastha Wadhwa, respondent present in person.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 10/05/2019 This appeal has been filed by the appellant, Siddarth Motwani assailing order dated 30.04.2019 passed on the application filed by the parties under Section 13B of the Hindu Marriage Act, 1955 (for short 'the Act') seeking decree of divorce by mutual consent by the Family Court No. 1, Jaipur (for short 'the Family Court'). The Family Court by the aforesaid order has deferred the proceedings for six months to enable the parties to rethink over the matter.
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(2 of 7) [CMA-2084/2019] Mr. J.P. Goyal, learned Senior Counsel appearing on behalf of the appellant-husband submitted that the marriage of the appellant and the respondent was solemnised on 17.07.2013. The appellant is residing in USA and the respondent-wife is currently residing in Delhi. Both are living separately for 2½ years and their marriage has reached at the stage of irretrievable break down. There is no possibility of settlement between the parties. The appellant and the respondent both have now decided to dissolve their marriage amicably by obtaining a decree of divorce by mutual consent. The parties filed a joint application before the Family Court along with the deed of compromise, according to which the appellant-husband has agreed to pay a sum of Rs. 25,00,000/- to respondent-wife as one time full and final payment towards the maintenance, permanent alimony in the manner indicated in the aforesaid deed of compromise. Learned Senior Counsel cited judgments of the Supreme Court in Amardeep Singh Vs. Harveen Kaur, Civil Appeal No. 11158 of 2017 decide on 12.09.2017; Veena Vs. State of Govt. of NCT, Delhi & Anr. (2011) 14 SCC 614 and Devinder Singh Narula Vs. Meenakshi Nangia, (2012) 8 SCC 580 and argued that six months period as envisaged in the Act is only directory and not mandatory, therefore, the same can be dispensed with in fit cases. It is submitted that the appellant has already handed over two demand drafts, each of Rs. 6,00,000/- to the respondent-wife on 16.04.2019 and 30.04.2019 respectively and third demand draft of Rs. 13,00,000/- was deposited with the Family Court.
Learned counsel for the respondent-wife does not dispute the aforesaid position and submitted that the respondent (Downloaded on 29/06/2019 at 12:24:59 AM) (3 of 7) [CMA-2084/2019] is desirous of obtaining decree of divorce on the conditions enumerated in the deed of compromise.
The parties with the application under Section 13B of the Act filed deed of compromise, which is reproduced hereunder:
"DEED OF COMPROMISE THIS DEED OF COMPROMISE is made at Jaipur on 5th day of April, 2019.
By and BETWEEN Shri Siddharth Motwani son of Sh. Chanderbhan Motwani, age 36 years, resident of 578, G-Block, Makarwalli Road, Ajmer, Rajasthan at present residing at Arapaho Rd. Dallas - Texas - USA through his Power of Attorney Holder Sh. Chanderbhan Motwani, son of Shri P.J. Motwani aged about 73 years, resident of 578, G- Block, Makarwalli Road, Ajmer, Rajasthan, hereinafter called the HUSBAND (which expression shall, unless repugnant to the context, mean and include his heirs, executors, administrators and assigns) of the One Part AND Smt. Aastha Wadhwa Wife of Shri Siddhartha Motwani, daughter of Late Shri Subhash Chand Wadhwa, age 32 years, resident of Rukmani Garden, Shiv Marg, Banipark, Jaipur at present resident of hereinafter called the WIFE, (which expression shall, unless repugnant to the context, mean and include her heirs, executors, administrators and assigns) of the Other Part.
WHEREAS the parties hereto are husband and wife, their marriage having been solemnised at Jaipur on July 17, 2013 as per the Hindu religion, vedic rites and ceremonies;
AND WHEREAS out of their wedlock, the parties hereto do not have any son of daughter;
AND WHEREAS during so many years in the past, the parties hereto have realised that their liking, tastes of life, temperaments, ideas, ideologies, thinking, aptitudes, attitudes, intellectual capacities, feelings, moods, nature and general approach to life are so different from each other that only on those and the like several other reasons, they have always had not been able to hit it off together;
AND WHEREAS on account of such differences between the parties, there have been frequent quarrels and court litigations during the recent past;
AND WHEREAS under such peculiar and very delicate circumstances of family affairs, the parties hereto decided to live apart and also to let live each other peacefully for their mutual interests;(Downloaded on 29/06/2019 at 12:24:59 AM)
(4 of 7) [CMA-2084/2019] AND WHEREAS the parties hereto have also decided to sort out their problems amicably and by entering into a Deed of Compromise cum Memorandum of Understanding;
AND WHEREAS the parties hereto have worked out the terms and conditions of their agreement and also decided to reduce the same into writing;
NOW, THIS DEED WITNESSES, and it is hereby mutually agreed by and between the parties as follows;
1. That the parties hereto do hereby declare and confirm that the Deed of Compromise under these presents does not amount to any collusion of their part, and they do hereby further and once again declare and confirm that they sincerely enter into and execute this Deed of Compromise only with their full consent and final agreement.
2. That the parties hereto do hereby declare and confirm that they have mutually agreed to opt for such a course of mutual understanding and amicable settlement with a view to saving a lot of time, money and energy and also serving the cause of their family as a whole, for they now better know that it would always be better and in the interests of both the parties to choose for such a course, because they have, though belatedly but rightly, given a thought to their ideas to the effect that fighting (in terms of Litigation) in the courts of law will not serve any purpose, and they also really know that in such family and matrimonial affairs, there is really no winner and there is no loser.
3. That since the Husband and Wife are residing separately for more than past two years therefore the parties have decided to seek a decree of divorce on the basis of Mutual consent for which both the parties shall prefer a joint petition for being granted a decree of Divorce before the competent court before March 30 th, 2019.
4. That the Husband shall pay a sum of Rs.25,00,000/- (In words Rupees Twenty five Lakhs) to the wife as one-time full and final payment towards the maintenance, permanent-alimony, the amount shall be paid in the below mentioned manner:
Amount Paid at the time of
Rs.6,00,000/- (Six Lakhs) At the time of Quashing of FIR
DD NO. 240272, Drawn on against Chanderbhan Motwani
Kotak Mahindra Bank, dated and Smt. Geeta Motwani, for
04.04.2019 which a Crl. Misc. Petition
No.1387/2017 is already
pending before Hon'ble High
Court-Jaipur Bench.
Rs.6,00,000/- (Six Lakhs) At the time of Quashing of FIR
DD NO. 240273, Drawn on against Siddhartha Motwani for
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Kotak Mahindra Bank, dated which a Crl. Misc. Petition shall
04.04.2019 be preferred by the parties
either Jointly or by Siddhartha
Motwani.
Rs.13,00,000/- (Thirteen Lakhs) Shall be annexed with the
DD NO. 240274, Drawn on petition of Divorce that shall be
Kotak Mahindra Bank, dated handed over to Wife, post
04.04.2019 passing of Decree for Divorce.
the Husband shall draw a cheque/Demand Draft in name of wife in the aforesaid manner that shall be paid or made available in the manner prescribed in the above mentioned manner.
5. That while executing this Deed of Compromise, the wife does hereby agree and undertake to simultaneously withdraw all the criminal complaints, F.I.R, civil suits, family court petitions lodged or filed by her against the husband, family members of the husband namely Shri Chanderbhan Motwani and Smt. Geeta Motwani and also to extend the fullest cooperation to the husband or any other person authorised by him in all such matters and litigations, and this isf a condition precedent put forth by the husband unto the wife for entering into the memorandum of understanding under these presents.
6. That the Wife shall remain present and give her consent in the petitions filed by the Husband or Family member of the Husband to quash the F.I.R. lodged by wife in respect of all the offences and more specifically the offences under section 420, 406, 498A IPC, more specifically FIR No.341/2016 registered at Police Station Mahila Thana West, Jaipur, which is under investigation.
7. That the parties hereto do hereby agree and undertake not to file any civil action or lodge any criminal complaint against each other or the family member of each other in the future.
8. That if there are any Bank accounts, Demat accounts of shares, etc. in the joint names of the parties hereto, the same shall be closed with immediate effect.
9. That if there are any Fixed Deposits, shares, or any other Investments in the joint names of the parties hereto, the same shall be retained by the Husband, and the other party shall cooperate by giving signature, wherever required, to remove the joint name.
10. That is future, neither of the parties shall claim for any maintenance charges or claim any property.
11. That in case if wife refrains herself from appearance before the Hon'ble High Court or the Family Court at any point of time for either grant of Decree of Divorce or for petitions for Quashing of FIR, the husband will have the right to either stop the payment of cheque or to recover the said amount.(Downloaded on 29/06/2019 at 12:24:59 AM)
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12. That any deed, agreements entered into by the parties before the execution of the present deed shall be treated to be null and void after the execution of the present dated.
13. That this deed of compromise has been executed in 4 copies.
IN WITNESS WHEREOF the parties hereto have signed hereunder at Jaipur the date first abovementioned.
Sd/ Siddharth Motwani through his Power of Attorney Holder (Husband) Shri Chanderbhan Motwani Sd/ Aastha Wadhwa (Wife) Witnesses:
1. Sd/ Ankur Kanda, 402 Rukamni Garden Apt.
B2E/F, Shiv Marg, Bani Park, Jaipur.
2. Sd/ Raj Kumar Chelani, 3C-21, Nr. Satkar Shopping Centre, Malviya Nagar, Jaipur-302017"
Pursuant to the aforesaid deed of compromise, the respondent-wife has already received a sum of Rs. 12,00,000/- by way of two demand drafts, each of Rs. 6,00,000/- and she is agreeable to obtain decree of divorce by mutual consent on receipt of remaining amount of Rs. 13,00,000/- as full and final payment towards the maintenance, permanent alimony.
Both the parties are present in the Court and have signed order sheet of the file. They have been identified by their respective counsel.
The Family Court has deferred the proceedings of the application under Section 13B of the Act for six months to enable the parties to rethink over the matter. Even otherwise, this Court has the power to waive the cooling period of one year in view of judgments of the Supreme Court in Veena (supra); Devinder Singh Narula (supra); and Amardeep Singh (supra). In (Downloaded on 29/06/2019 at 12:24:59 AM) (7 of 7) [CMA-2084/2019] 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 above, we are persuaded to allow the appeal. The appeal is accordingly allowed. The order dated 30.04.2019 passed by the Family Court No. 1, Jaipur in Divorce Petition No. 3367/2019 is set aside. The application filed by the parties under Section 13B of the Act before the Family Court is allowed and the marriage between the appellant-husband and the respondent-wife is therefore dissolved by mutual consent with immediate effect. Decree of divorce be prepared accordingly.
Since the demand draft of Rs. 13,00,000/- is lying with the Family Court, therefore, the Presiding Officer of the Family Court is directed to hand over the demand draft of Rs. 13,00,000/- to respondent-wife Mrs. Aastha Wadhwa against clear receipt on her approaching the said Court along with copy of this judgment.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J MANOJ NARWANI /57 (Downloaded on 29/06/2019 at 12:24:59 AM) Powered by TCPDF (www.tcpdf.org)