Vishwas Vasantrao Muglikar vs Jyoti Murlidhar Muglikar
2017 Latest Caselaw 7256 Bom

                                   (1)                             fca51.04

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                  FAMILY COURT APPEAL NO. 51 OF 2004
                                 WITH
                  CIVIL APPLICATION NO. 3480 OF 2009
                                  AND
                  CIVIL APPLICATION NO. 4505 OF 2009
                                  AND
                  CIVIL APPLICATION NO. 6357 OF 2017


Vishwas s/o. Vasantrao Muglikar          ..                  Appellant
Age. 43 years, Occ. Government Servant                       [original
R/o. Permanently residing at Dhankawadi,                     petitioner]
Near Petrol Pump, Pune.

                                  Versus


Jyoti Murlidhar Muglikar,                           ..       Respondent
Age. 44 years, Occ. Household,                               [original
R/o. Omerga, Tq. Omerga,                                     respondent]
Dist. Osmanabad
C/o. Murlidhar Shriniwasrao Muglikar,
R/o. Omerga, Tq. Omerga,
Dist. Osmanabad.


Mr.R.N. Dhorde, Sr. Counsel i/b. Mr.V.R. Dhorde, Advocate 
for the appellant.
Dr.S.D. Tawshikar, Advocate for sole respondent.


                                   CORAM :  T.V.NALAWADE &
                                            S.M.GAVHANE,JJ.

DATED : 18.09.2017

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JUDGMENT [PER : S.M. GAVHANE, J.] :-

1. This Family Court Appeal has been filed by the

husband challenging the judgment and decree dated

19.07.2004 passed by the Principal Judge, Family Court,

Aurangabad dismissing his Petition No.A-173 of 1997 under

section 11 of the Hindu Marriage Act, 1955 for nullity of

marriage or in the alternative for annulling the marriage

between him and the respondent by a decree of nullity, as

per section 12 of the Hindu Marriage Act, 1955.

2. The respondent/wife has filed Civil Application

No.4505 of 2009 thereby praying to direct the appellant/

husband to pay interim alimony of Rs.10,000/- per month,

pending hearing and disposal of the aforesaid Family

Court Appeal and further to direct the respondent to

deposit interim maintenance of Rs.13,200/- in this Court

immediately, so also to direct him to deposit fees of

advocate and expenses of Rs.6000/- in this Court with

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liberty to withdraw the same with other suitable and

equitable reliefs.

3. The appellant/husband also filed Civil

Application No.3480 of 2009 thereby praying to allow him

to produce additional evidence as per the list of

documents annexed to the Civil Application.

4. However, during the pendency of the above

proceedings i.e. the Family Court Appeal and the Civil

Applications, the matter was referred to the Mediation.

As per the Mediator's report the Mediation was successful

and as per consent terms annexed to said report the

parties have agreed to settle the dispute and they have

agreed to end their relationship and to obtain a decree

of divorce by mutual consent under section 13-B of the

Hindu Marriage Act, 1955.

5. Thereupon, the parties have filed Civil

Application No.6357 of 2017 on 25.04.2017 thereby praying

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to treat their Family Court Appeal No.51 of 2004 as a

petition for divorce by mutual consent under section 13-B

of the Hindu Marriage Act, 1955 and to pass decree of

divorce by mutual consent under section 13-B of the Hindu

Marriage Act, 1955. To support the contentions in the

application, the parties have relied upon the ratio laid

down in the case of Vinod Batra Vs. Sushma Rani, FAO

No.10044 of 2014 of Punjab and Haryana High Court at

Chandigarh, decided on 22.02.2017 and in the case of Smt.

Ekta w/o. Navin Patil & Anr. Vs. Shri Navin s/o. Sukhram

Patil, FCA Nos.129/14, 132/14 with WP No.4161/14 [Nagpur

Bench of Bombay High Court] decided on 10.02.2017,

respectively seeking permission to convert the petition

originally filed under section 13 of the Hindu Marriage

Act, 1955 into one under section 13-B of the Hindu

Marriage Act, 1955 and Civil Application (CAO)

No.156/2017 Family Court Appeal No.129/14 for permission

to convert the proceedings of the said appeal into a

petition under section 13-B of the Hindu Marriage Act,

1955, which were allowed. We have perused the facts and

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orders in the above decisions.

6. As per order dated 08.08.2017, this Court

interacted with the appellant and respondent and they

stated that the compromise arrived at between them and

they have decided to settle the dispute amicably. The

appellant husband has paid Rs.1,50,000/- to respondent

wife as mentioned in above order. Thereafter, the matter

was fixed today for further consideration. Along with

the application, the parties have filed consent terms

[Exh.C-1]. As per the said consent terms, the respondent

wife has agreed to accept Rs.21,50,000/- towards one time

settlement against all their past, existing and future

rights and both have requested to pass decree for

dissolution of marriage by mutual consent in terms of

clause Nos.(a) to (e) of the consent terms.

7. Today the parties are present. Learned Sr.

Counsel for the husband and learned Counsel for the wife

are heard. Necessary enquiry is made. Learned Sr.

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Counsel submitted that total amount is paid towards

settlement and demand drafts of amount of Rs. 20,00,000/-

(Rupees Twenty Lakhs) are brought and they are handed

over to the learned Counsel for wife. Photocopy of the

demand drafts are taken on record. Learned Counsel for

wife undertakes to give separate receipt to the husband

in respect of this amount. Considering the submissions

made by the learned Sr. Counsel for the husband and

learned Counsel for the wife and the ratio laid down by

the Hon'ble Supreme Court in the case of Amardeep Singh

Vs. Harveen Kaur, Civil Appeal No. 11158 of 2017 relied

upon by the parties, decided on 12th September, 2017 and

particularly the observations in para 21 i.e. "Since we

are of the view that the period mentioned in Section

13B(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", the consent terms Exh.C-1

filed by the parties to this proceeding along with Civil

(7) fca51.04

Application No. 6357 of 2017, having regard to the fact

that the parties are residing separate since last 35

years and there are no chances of their coming together

and that the Mediation was successful, it is just to

dissolve the marriage between the appellant - original

petitioner and the respondent, by mutual consent under

section 13-B of the Hindu Marriage Act, 1955 by allowing

above application by waiving six months period under

section 13B(2) of the Hindu Marriage Act, 1955 and by

setting aside the impugned order by allowing the appeal.

8. Hence, the following order is passed :-

(A) The appeal is allowed. The impugned judgment and

decree dated 19.07.2004 passed in Petition No. A-173 of

1997 by the Principal Judge, Family Court, Aurangabad is

quashed and set aside and it is substituted by the

following decree.

(i) Civil Application No.6357 of 2017

filed by the parties for divorce by mutual

consent under section 13-B of the Hindu Marriage

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Act, 1955 treating the Family Court Appeal as a

petition under section 13-B of the Hindu

Marriage Act, 1955 is allowed. The appellant/

original petitioner shall make necessary

amendment in the original petition forthwith.

(ii) The marriage performed between the

petitioner and the respondent stands dissolved

under the provisions of section 13-B of the

Hindu Marriage Act, 1955 in terms and condition

as stipulated in consent terms Exh.C-1, annexed

to the application and decree be drawn

accordingly.

(B) The Family Court Appeal and all connected Civil

Applications stand disposed of in above terms.

[S.M.GAVHANE,J.] [T.V.NALAWADE,J.]

snk/2017/SEP17/fca51.04