Shukal Jayrenu W/O Pankajkumar vs Shukal Pankajkumar Kiritbhai

      C/FA/474/2022                                   ORDER DATED: 10/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 474 of 2022
                                    With
                        R/FIRST APPEAL NO. 899 of 2021
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                      SHUKAL JAYRENU W/O PANKAJKUMAR
                                   Versus
                       SHUKAL PANKAJKUMAR KIRITBHAI
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MS AMI N BHATT(3372) for the Appellant(s) No. 1
JAY J JANI(9303) for the Defendant(s) No. 1
MR TEJAS S TRIVEDI(5692) for the Defendant(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
        and
        HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                Date : 10/02/2023

                                  ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. Out of aforesaid two appeals, First Appeal No. 474 of 2022 has been filed by present appellant - original applicant wife under Section-19 of the Family Courts Act, 1954 read with Section-28 of the Hindu Marriage Act, 1955 challenging the judgment and order dated 30.04.2015 passed by the Principal Judge, Family Court, Gandhinagar in H.M.P. No. 164 of 2013, by which, the Family Court Judge has dismissed the petition filed by present appellant - original applicant wife for restoration of conjugal rights. Whereas First Appeal No. 899 of 2021 has been filed by the appellant - original applicant husband under Section-19 of the Family Courts Act challenging the judgment and decree dated 10.12.2019 passed by learned Judge, Family Court No.4, Ahmedabad in Family Suit No. 342 of 2014, by which, Page 1 of 5 Downloaded on : Tue Feb 14 20:39:30 IST 2023 C/FA/474/2022 ORDER DATED: 10/02/2023 learned Family Court Judge has dismissed the petition filed by present appellant - original applicant husband for decree of dissolution of marriage under Section-13 of the Hindu Marriage Act.

2. Both the appeals came to be admitted by the Coordinate Bench of this Court. Both the appeals are ordered to be heard together.

3. Today, when the appeals called out, the appellant - original applicant wife has filed an affidavit dated 06.01.2023 in the First Appeal No. 899 of 2021. By the said affidavit, she has declared as under:

I, Jayrenu Pankanjkumar Shukla, aged about 49 years, Hindu, residing at :- T.No. 956, Shivshakti Society, Sector - 27, Gandhinagar, respondent of captioned appeal do hereby on solemn affirmation state as herein as under:-

1. I state and submits tha I and appellant got married on 02.03.2006 at Gandhinagar, as per the rites and ritual of Hindu religion, That, thereafter, due to differences between the appellant and me, I am leaving separately since 28.05.2008 from the appellant and now it is impossible for the appellant and me to live together as husband and wife. I state and submit that since me and the appellant are residing separately since more than 14 years, there is no cohabitation between us as husband and wife.

2. I state and submit that the appellant - husband filed Family Suit being No. 342 of 2014 before the Family Court, Ahmedabad under Section - 13(1) of the Hindu Marriage Act inter alia praying for dissolution of marriage, which came to be rejected on 10.12.2019 and against the said order, the appellant preferred captioned appeal before this Hon'ble Court.

C/FA/474/2022 ORDER DATED: 10/02/2023

3. I state and submit that after leaving matrimonial house, I filed Section 9 of the Hindu Marriage Act for reconstitution of conjugal rights before the Family Court of Gandhinagar, which came to be rejected on 30.04.2015. I state and submit that against the said order, I preferred First Appeal being No. 474 of 2022 before the Hon'ble Court, which is pending for adjudication. I state and submit that I also filed Criminal Misc. Application No. 723 of 2009 before the learned Civil Judge & JMFC, Gandhinagar under Section - 125 of the Code of Criminal Procedure, wherein, the Ld. Court lowed directed the Appellant - husband to pay rs.3,000/- per month to me. I state and submit that I moved an application under Section

- 127 of the Cr.P.C. for enhancement of maintenance amount and Ld. Court below directed the appellant to pay Rs.6,000/- per month. I state and submit that till the date the appellant herein has paid approximately more than Rs.10,00,000/- to me.

4. I state and submit that during pendency of the captioned appeal and also during the pendency of the appeal preferred by me before this Hon'ble Court, because of intervention of near relatives and common friends and since the matrimonial ties between the appellant and me have irretrivevably broken down and there is possibility of leaving together as husband ans wife, I and appellant herein have mutually arrived at amicable settlement and have decided to dissolve our marriage. I state and submit that over and above the maintenance received by me from the appellant herein as stated herein above, I am taking Rs.8,50,000/- as permanent alimony from the appellant and waiving my all other rights of maintenance etc. I state and submit that the settlement deed also came to be executed between me and the appellant herein on various conditions. I state and submit that the conditions mentioned in the said settlement - deed may considered as part and parcel of the present affidavit. I agree and undertake to abide by the conditions mentioned therein. A copy of the settlement deed executed between me and the appellant herein is annexed hereto and marked as ANNEXURE-RI to this affidavit.

5. I state and submit that, since me and appellant have arrived as settlement and as per the conditions of the settlement, I am filing this affidavit giving my consent to allow the captioned appeal preferred by the Page 3 of 5 Downloaded on : Tue Feb 14 20:39:30 IST 2023 C/FA/474/2022 ORDER DATED: 10/02/2023 appellant - husband and thereby, I request this Hon'ble Court to grant decree of divorce dissolving the marriage solemnized between me and appellant on 02.03.2006. I don't have any objection if the captioned appeal will be allowed in favour of the appellant. I am also declaring by this affidavit that I am withdrawing my first appeal being No. 474 of 2022 pending before this Hon'ble Court.

6. The present affidavit and my decision for no objection to allow the captioned appeal and dissolving marriage is not based upon any force or influence and present affidavit and affidavit and contents mentioned in the present affidavit as well as the settlement deed attached with the present affidavit are of free consent and will and without any undue force, influence and threat.

Solemnly affirmed on 6th day of January, 2023 at Ahmedabad.

4. Both the parties are present before this Court and have been identified by respective learned advocates appearing on their behalf. On inquiry, they have stated that they have decided for dissolution of their marriage solemnized on 02.03.2006 at Gandhinagar as per the Hindu rites and rituals. They have declared that they shall file petition under Section 13(B) of the Hindu Marriage Act within a period of three weeks from today. They further state that they are residing separately since more than 14 years.

5. Considering the above facts, we pass the following orders:

     [i]      present first appeals are allowed.


     [ii]     The judgment and order dated 30.04.2015 passed by the

Principal Judge, Family Court, Gandhinagar in H.M.P.

C/FA/474/2022 ORDER DATED: 10/02/2023 No. 164 of 2013 and the judgment and decree dated 10.12.2019 passed by learned Judge, Family Court No.4, Ahmedabad in Family Suit No. 342 of 2014 are quashed and set aside.

[iii] Present appellant shall file petition under Section-13(B) of the Hindu Marriage Act before the Family Court, Gandhinagar.

[iv] If such petition is filed, learned Family Court, Gandhinagar shall decide the petition as early as possible preferably within a period of one month from the date of filing such petition.

[v] It is needless to say that when they have declared on affidavit before this Court that they are residing separately since 2008, we are of the view that there is no need to waive the period provided under the provision of Hindu Marriage Act and accordingly, learned Family Court shall not insist for waiving the period provided under the Hindu Marriage Act.

(A.J.DESAI, J) (RAJENDRA M. SAREEN,J) F.S.KAZI Page 5 of 5 Downloaded on : Tue Feb 14 20:39:30 IST 2023