Himachal Pradesh High Court
Kapura Ram vs Neenu Kumari on 6 April, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 6th DAY OF APRIL, 2022
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
FIRST APPEAL FROM ORDER No. 218 OF 2011
Between:-
PAWAN KUMAR SON OF SHRI
KAPURA RAM, RESIDENT OF
VILLAGE CHARMELI, PO CHABUTRA,
TEHSIL SULTANPUR, DISTRICT
HAMIRPUR, H.P.
..........APPELLANT
(BY SH. AJAY SHARMA, SENIOR
ADVOCATE WITH MR. ATHARV
SHARMA, ADVOCATE)
AND
NEENU KUMARI WIFE OF PAWAN
KUMAR, S/O KAPURA RESIDENT OF
VILLAGE BHARMELI, P.O. & TAPPA
CHABUTRA, TEHSIL SUJANPUR,
DISTRICT HAMIRPUR, H.P. AT
PRESENNT RESIDING IN THE HOUSE
OF HER FATHER SH. JASBANT
SINGH, TEHSIL SUJANPUR, DISTRICT
HAMIRPUR, H.P.
........RESPONDENTS
(BY MR. DHEERAJ K. VASHISHT, ADVOCATE
FOR RESPONDENT NO. 1;)
___________________________________________________________
Whether approved for reporting: No
This petition coming on for orders this day, the Court
delivered the following:-
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2
JUDGEMENT
By way of this appeal filed under Section 28 of the .
Hindu Marriage Act, the appellant/petitioner has challenged the judgment passed by the Court of learned District Judge, Hamirpur, passed in HMA Petition No. 93 of 2008, titled as Pawan Kumar vs. Neenu Kumari, dated 19.05.2011, vide which, the petition filed by the present appellant under the Hindu Marriage Act stood dismissed.
2. During the course of hearing of this appeal, on 03.12.2021, this Court passed the following order:-
"FAO No. 218 of 2011 & CMP No. 12198 of 2021 In terms of order dated 25.11.2021, the appellant as well as the respondent are present in person in the Court. The appellant through Counsel has stated in the open Court that he is willing to pay an amount of Rs.7.00 lac to the respondent as full and final settlement of the issue. He stated that after the payment of the said amount, this Court may pass decree of mutual divorce between the parties.
Respondent through Counsel states in the open Court that the offer being made by the appellant is acceptable to her and decree of mutual divorce be passed but after the payment is made by the ::: Downloaded on - 24/12/2022 09:12:31 :::CIS 3 appellant to her. Their statements so made through Counsel in open Court are taken on record.
.
On the request of the parties, the case is ordered to be listed on 04.04.2022, on which date, both the parties shall remain present in person in the Court. The amount of Rs.7.00 lac be paid in the meanwhile by the appellant to the respondent by way of bank draft/bank drafts. It shall be open to the parties to approach the Court for passing of appropriate orders, in case, this amount is paid by the appellant to the respondents before 31st March, 2022. The appellant shall pay an amount of Rs. 2.00 lac by way of bank draft to the respondent by 31st December, 2021 and the balance amount on or before 31st March, 2022."
3. This was followed by recording of statements of the parties before this Court on April 04, 2022, in which, both the parties deposed that they have settled all their disputes between them and a joint prayer was made by them for the grant of decree of mutual divorce in view of agreement of withdrawal of all allegations and counter allegations made by them against each other and also against family members. On 04.04.2022, the Court passed the following order:-
"By way of this appeal, the appellant herein has challenged the judgment passed by the Court of ::: Downloaded on - 24/12/2022 09:12:31 :::CIS 4 learned District Judge, Hamirpur, H.P., in H.M.A. Petition No. 93 of 2008, titled as Pawan Kumar Vs. .
Neenu Kumari, vide which, petition filed by the present appellant under Section 13-1 (i-a) (i-b) of the Hindu Marriage Act, 1955, was dismissed by the learned Court below.
During the pendency of the present proceedings, the parties were called upon by the Court to explore the possibility of some amicable settlement. The parties agreed for mutual divorce subject to the appellant herein paying an amount of Rs. 7 lacs to the respondent as full and final settlement of the issue. This stands so recorded in the order which was passed by this Court on 03.12.2021.
Today appellant as well as the respondent are present in the Court in person. Respondent has informed the Court that as the amount of Rs. 7 lacs has been paid by the appellant to her, she is willing to agree for a decree of divorce of mutual divorce. Her statement to this effect has also been recorded in the Court that a decree of mutual divorce be passed between her and the appellant. Similarly, statement to this effect of the appellant has also been recorded ::: Downloaded on - 24/12/2022 09:12:31 :::CIS 5 in the Court, who has also stated that he agrees for a mutual divorce.
.
Now, let, the matter is ordered to be listed on 06.04.2022, for orders."
5. It is in continuation thereof that the case is listed in the Court today.
6. Brief facts necessary for the adjudication of the present appeal are that marriage between the appellant and the respondent, who are husband and wife respectively, was solemnized on 18.11.2004 in accordance with Hindu rites and customary ceremonies. The petition for divorce was filed by the appellant herein under Section 13(1) (i-a) (i-b) of the Hindu Marriage Act on the grounds of cruelty and desertion. The same was dismissed by the learned Court below by holding that the petitioner had failed to prove his case. As already mentioned hereinabove, now the parties having reconciled the matter amongst themselves have prayed for a decree of mutual divorce.
On the joint request of learned Counsel on behalf of the parties, this appeal itself is treated to be a petition for divorce by mutual consent in terms of Section 13(b) of the Hindu Marriage Act. Now it is no more in dispute that the parties at least from the date of the adjudication of the petition preferred by the present appellant under Section 13 of the Hindu Marriage Act are residing separately from each other, and in these circumstances, as a special case, ::: Downloaded on - 24/12/2022 09:12:31 :::CIS 6 this Court orders that the present appeal be treated as the proceedings filed for mutual divorce as from the date of filing of the .
present appeal which satisfies the requirement of Section 13-B(2) of the Hindu Marriage Act as 18 months have elapsed since the filing of the present proceedings. As the Court is satisfied after hearing the parties and after taking into consideration the respective statements, which have been made before it by the parties on 04.04.2022, that it is a fit case where a decree for mutual divorce, declaring the marriage between the parties to be dissolved, can be passed, it is accordingly ordered that this Court hereby passes a decree of divorce declaring the marriage between the parties before this Court to be dissolved with effect from the date of passing of the present decree.
With these observations, present proceedings stand disposed of. As a result, this Court grants decree of mutual divorce to the parties. The judgment passed by learned Court below, which stands assailed by way of present proceedings, is ordered to be set aside. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel) Judge April 06, 2022 (narender ::: Downloaded on - 24/12/2022 09:12:31 :::CIS