Chattisgarh High Court
Manish Verma vs Smt. Pooja Verma on 12 August, 2022
1
FA (MAT) 49 of 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 49 of 2022
• Manish Verma S/o Shri Bahal Singh Verma, Aged About 37 Years
R/o Ward No. 04, Mohbhattha Road, Bemetara, Tahsil And
District Bemetara (Chhattisgarh)
---- Appellant
Versus
• Smt. Pooja Verma W/o Shri Manish Verma, Aged About 26 Years
R/o Ward No. 04, Mohbhattha Road, Bemetara, Tahsil And
District Bemetara Chhattisgarh. Presently Residing At Village
Baiji, Police Station, Tahsil And District Bemetara (Chhattisgarh)
---- Respondent
For Appellant : Shri Atul Kumar Kesharwani,
Advocate
For Respondent : Shri Viprasen Agrawal,
Advocate
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri, J.
12/08/20 22
Heard.
1. The instant appeal is against the order dated 15.02.2022 passed
by Learned Family Court, Bemetra wherein an application under
Section 9 of the Hindu Marriage Act, 1955 for restitution of
conjugal rights was dismissed. The application under Section 9
FA (MAT) 49 of 2022
for restitution of Conjugal rights was preferred by the husband
and the present appeal is also by the husband.
2. During the course of hearing before this Court, parties were sent
for mediation to explore the chances of settlement, if any. The
mediation took place and the parties who are present in person
namely Manish Verma and Smt. Pooja Verma both submit that
they have decided to part their ways and agreement styled as
"Samjhauta Patra " is also been placed which bears the
signature of both the parties and their advocates. Application
has also been filed under Section 13 (B) of Hindu Marriage Act,
1955 for dissolution of marriage by mutual consent. The perusal
of the agreement entered in between the parties would show
that they have decided to mutually part ways and submit that no
further claims would be made in respect of the matrimonial ties
and obligations. The agreement further purports that Rs.
5,00,000/- has already been handed over to the wife
(respondent) by the husband (appellant). The wife Smt. Pooja
Verma present before this Court affirms the fact that she has
received the amount of Rs. 5,00,000/- and will take back CRI
MJC No. 78/ 2022 and MJC No. 2/2020. The agreement further
purports that the gift items received during the marriage have
also been returned by the husband to the wife which are shown
at Para 4 of the agreement. The wife who is present before this
court admits to have received the goods.
3. Briefly stated facts of the case are that marriage was solemnized
FA (MAT) 49 of 2022
on 04.05.2017. Subsequently, they cannot go along and
eventually started living separately since 02.01.2020 and all the
efforts for reconciliation has failed. Husband filed an application
for restitution of conjugal rights under Section 9 of the Hindu
Marriage Act which was dismissed and the appeal was filed
before this Court. The mediation report shows that efforts of
reunion between the parties have failed and after the mediation
they have decided to stay apart and also one time permanent
alimony of Rs. 5,00,000/- has also been paid. During the course
of submission both the parties mutually submit that cooling off
period of 6 months may also be waived off and application I.A.
No. 01 has also been preferred for waiving off the 6 months
period.
4. Learned counsel for the appellant submits that the application for
mutual divorce was filed on 08.08.2022 and waiver application
has been filed on 10.08.2022.
5. In this context, the text of section 13-B of Hindu Marriage Act
would be relevant here and quoted below:-
"13-B. Divorce by mutual consent.-- (1)
Subject to the provisions of this Act a petition
for dissolution of marriage by a decree of
divorce may be presented to the district court
by both the parties to a marriage together,
whether such marriage was solemnised before
or after the commencement of the Marriage
FA (MAT) 49 of 2022
Laws (Amendment) Act, 1976, on the ground
that they have been living separately for a
period of one year or more, that they have not
been able to live together and that they have
mutually agreed that the marriage should be
dissolved.
(2) On the motion of both the parties made not
earlier than six months after the date of the
presentation of the petition referred to in sub-
section(1) and not later than eighteen months
after the said date, if the period is not
withdrawn in the meantime,the Court shall, on
being satisfied, after hearing the parties and
after making such inquiry as it thinks fit, that a
marriage has been solemnised and that the
averments in the petition are true, pass a
decree of divorce declaring the marriage to be
dissolved with effect from the date of the
decree."
6. The Supreme Court in a case law reported in (2017) 7 SCC page
746 - Amardeep Singh Vs. Harveen Kaur has held that in
the year 1976, the concept of divorce by mutual consent was
introduced and however, section 13-B(2)contains a bar to
divorce being granted before six months of time elapsing after
filing of the divorce petition by mutual consent. The said period
FA (MAT) 49 of 2022
was laid down to enable the parties to have a rethink so that
the court grant divorce by mutual consent only if there is no
chance for reconciliation. The Supreme Court has further laid
down the following principles at para 19 :
"19. Applying the above to the present
situation, we are of the view that 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 13-B(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 32-A
Rule 3CPC/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
FA (MAT) 49 of 2022
their differences including alimony,
custody of child or any other pending
issues between the parties;
(iv) the waiting period will only prolong
their agony.
7. Applying the aforesaid principles to the present case the facts
would suggest that after the marriage took place in 2017 both
the appellant/ husband and wife/ respondent are living
separately since January, 2022 and application under section 9
of Hindu Marriage Act by the husband also suffered the
dismissal before the Family Court and thereafter the appeal
having been filed both the parties who are present in person
submit that they have decided to part their ways. Therefore, by
all implication it goes to show, that after rethinking, the parties
have come to a firm opinion and have come to settle that they
cannot live together and want divorce. Further, the terms of the
agreement arrived in between the parties would show that the
permanent alimony has also been settled and paid along with
the fact that all the matrimonial gifts " Streedhan" has been
returned, which the wife present in person affirms to have
received. Having stated so, it further fortified the intension to
get separated and the cooling off period will only prolong their
agony.
8. Under these circumstances, we grant the decree of divorce to
the parties on their mutual consent and the cooling off period of
FA (MAT) 49 of 2022
6 months is hereby waived off. Accordingly it is ordered that the
marriage dated 04.05.2017 is dissolved by decree of divorce
henceforth. Since permanent alimony has also been settled no
further claim would be entertained on behalf of the wife as she
appears to be satisfied to receive the permanent alimony and
return of goods which was given to her during marriage. The
agreement in between the parties styled as "samjhauta patra"
dated 08.08.2022 shall be part of the decree
9. A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Jyoti
