Madhya Pradesh High Court
Mayank Mishra vs Smt. Rashmi Mishra on 28 March, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 28 th OF MARCH, 2023
FIRST APPEAL No. 192 of 2017
BETWEEN:-
MAYANK MISHRA S/O LATE SHRI AMARNATH JI
MISHRA, AGED 33 YEARS, OCCUPATION: SERVICE H.
NO. 18-B, VAIBHAV NAGAR, KANADIA ROAD, INDORE
(MADHYA PRADESH)
.....APPELLANT
(PRESENT IN PERSON )
AND
SMT. RASHMI MISHRA W/O SHRI MAYANK MISHRA,
AGED ABOUT 33 YEARS, OCCUPATION: SERVICE C/O-
SHRI ADHARA BABY NAGAR, NEAR LAL GALI POLICE
STATION, NEAR CHEER CHAYAN SAREE CENTRE
SAHASTRA DHARA ROAD, MAHESHWAR, DISTT.
KHARGONE (MADHYA PRADESH)
.....RESPONDENT
(NONE PRESENT FOR THE RESPONDENT)
This appeal coming on for admission this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
ORDER
Due to strike called by the M.P. State Bar Council, the Advocates are abstaining from Court work.
Heard on I.A. No. 2041/2023, an application under Section 13(B) of the Hindu Marriage Act, 1955 (for short "the Act of 1955" hereinafter).
T h e present appeal has been filed by the appellant (husband) being Signature Not Verified Signed by: SEHAR HASEEN Signing time: 3/29/2023 5:30:21 PM 2 aggrieved by the judgment and decree dated 21.04.2017 passed by the 1st Additional Principal Judge, Distt. Indore, in HMA No. 733/2014, whereby the petition seeking divorce under Section 13 (1) of the Act has been rejected.
The aforesaid joint application has been filed by the parties under Section 13 (B) of the Act of 1955 seeking divorce by mutual consent.
The brief facts of the case are that the appellant and the respondent got married on 12.12.2009. They had no issues from the said wedlock. Both of them resided together as husband and wife till July, 2010. Thereafter both of them are residing separately for more than 18 years on account of irreconcilable differences and the marriage has been irretrievably broken down between the parties. Also there remains no possibility of reconciliation. During pendency of present appeal, the appellant and the respondent have decided to obtain a decree of divorce, therefore, they have filed the joint application for grant of divorce by mutual consent. It is stated that since both of them are already living separately, therefore, pendency of the divorce petition for more than six months would seriously affect the future of both the appellant and the respondent. Hence, it is prayed that in the light of the Apex Court judgment in the case of Amardeep Singh Vs. Harveen Kaur reported in AIR 2017 SC 4417, the cooling period of six months may be waived off. It is further stated that lot of efforts have been made by both the parties as well as this Court to dissolve the dispute amicably but the same has failed and respondent and appellant are adamant to live separately and there is no possibility of compromise between the parties in future.
The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur(supra) has held as under:-
"Applying the above to the present petition, we are of the view that Signature Not Verified Signed by: SEHAR HASEEN Signing time: 3/29/2023 5:30:21 PM 3 where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13 B (2), it can do so after considering the following:
i) The statutory period of six months specified in Section 13 B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
ii) All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii) The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties.
iv) The waiting period will only prolong their agony."
In view of the above judgment passed by the Apex Court and taking into consideration the fact that now the parties have amicably settled the matter and are already living separately and there are no chances of any settlement between them, hence, the cooling period of six months is also waived off.
The factum of compromise has been verified by the Principal Registrar of this Court as per directions of this Court dated 21.03.2023. As per the terms and conditions, the appellant/husband has paid a sum of Rs. 50,00,000/- (Rupees Fifty Lakhs Only) through cheque to the respondent/wife and both the parties have abided by the terms and conditions as mentioned in the application.
On the basis of aforesaid, the application filed by both the parties under Section 13(B) of the Act is allowed. The impugned judgment and decree dated Signature Not Verified Signed by: SEHAR HASEEN Signing time: 3/29/2023 5:30:21 PM 4 21.04.2017, passed by the 1st Additional Principal Judge,Family Court ,Indore is set aside and following decree is passed:-
i.The marriage solemnized between the appellant/husband and respondent/wife is dissolved.
No order as to costs.
Let a decree be drawn accordingly.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
sh
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 3/29/2023
5:30:21 PM