Miss Bharti Chandrakar vs Anil Kumar Dubey
2022 Latest Caselaw 4408 Chatt

                                    1

                                                                        NAFR


     HIGH COURT OF CHHATTISGARH, BILASPUR

                         FAM No. 187 of 2019

    Miss Bharti Chandrakar D/o Rajendra Singh Chandrakar Aged
    About 37 Years R/o Tikrapara, Siddharth Chowk, Raipur, District
    Raipur Chhattisgarh., District : Raipur, Chhattisgarh --- Appellant.
                                Versus
1. Anil Kumar Dubey S/o Krishna Kumar Dubey Aged About 45 Years
   R/o Street No. 13, Plot No. 06-A, Panchsheel Phase Borsi, District
   Durg, Chhattisgarh., District : Durg, Chhattisgarh
2. Smt. Usha Singh W/o Anil Kumar Dubey Aged About 51 Years R/o
   Flat No. 03, Palash Complex, Maruti Vihar, Raipur Tahsil And
   District Raipur Chhattisgarh., Flat No. D-303, Basna Hirapur Road,
   Raipur Chhattisgarh., District : Raipur, Chhattisgarh
                                                         --- Respondents.

WITH FAM No. 151 of 2019 Anil Kumar Dubey S/o Shri Krishna Kumar Dubey Aged About 45 Years R/o Road No. 13, Plot No. 06-A, Panchsheel Phase, Borsi, District Durg Chhattisgarh. ---(Plaintiff), District : Durg, Chhattisgarh

---- Appellant.

Versus Smt. Usha Singh W/o Shri Anil Kumar Dubey Aged About 51 Years R/o Flat No. 03, Palash Complex, Maruti Vihar, Raipur District Raipur Chhattisgarh And Flat No. D-303, Barsana, Road Raipur, District Raipur Chhattisgarh. ---(Defendant), District : Raipur, Chhattisgarh --- Respondent

• Mr. Manoj Paranjpe, Counsel for the appellant in FAM No.151/2019 and for respondent No.1 in FAM No.187/2019.

• Mr. Sanjay Agrawal, Counsel for the appellant in FAM No.187/2019.

• Mr. Sourabh Sharma, Counsel for the respondent in FAM No.151/2019 & for respondent No.2 in FAM No.187/2019.

Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Shri Justice Deepak Kumar Tiwari

Order on Board by Justice Goutam Bhaduri J.

12.07.2022

1. As both these appeals are arising out of the common

judgment, they are being disposed of by this common

order.

2. FAM No.151/2019 has been preferred by Anil Kumar

Dubey/ Husband against Smt. Usha Singh/Wife challenging

the judgment and decree dated 30.04.2019 passed in Civil

Suit (HMA) No.340/2014 passed by Second Additional

Principal Judge, Family Court, Raipur, wherein the

application preferred by Anil Kumar Dubey/husband

seeking divorce, was dismissed.

3. While dismissing the said application under Section 13 of

the Hindu Marriage Act, it was observed in paras 20 to 22,

that the husband had illicit relation with one Bharti

Chandrakar (appellant in FAM No.187/2019) apart from his

marriage. Another appeal being FAM No.187/2019 has

been preferred by the Bharti Chandrakar to expunge the

adverse remarks against her in findings recorded in the

Judgement of court below about the illicit relation with Anil

Kumar Dubey. Both appeals came up for hearing on

20.04.2022 and this Court had sent the same for

mediation to explore the possibility of settlement in either

ways.

4. Thereafter, the mediation report dated 27.06.2022 has

been received wherein the husband - Anil Kumar Dubey

and the wife - Smt. Usha Singh have mutually agreed to

part ways and further to share the property, inter se,

between the husband & wife and their daughter namely

Rishika Dubey. The relevant paragraphs i.e. 6 & 7 of the

terms of settlement arrived at in between the parties on

27.06.2022 is reproduced hereunder:-

^^6- i{kdkjksa ds e/; fuEufyf[kr le>kSrk gqvk gS %& ¼v½ nksuksa i{kdkj bl ckr ij lger gSa fd tks 2 ch-,p-ds- ftldk irk ¶ySV] dzekad 3] ek:fr fogkj dksVk] jk;iqj] iykl dkEiysDl fLFkr gS rFkk nksuksa i{kdkjksa ds uke ij gS mDr ¶ySV dks nksuksa i{kdkj LosPNk ls viuh iq=h _f"kdk nqcs ds uke djrs gSa ¶ySV ds uke ds LFkkukarj.k dh leLr dk;Zokgh i{kdkj dza 1 }kjk dh tk;sxh ftlesa o"kZ 2021&22 dk lEifRr dj jlhn] uohure fctyh fcy jlhn ,oa lkslk;Vh esUVsusUl dh jlhn] fctyh ehVj iq=h _f"kdk ds uke LFkkukarfjr djus dh jlhn yxh gksA mDr ¶ySV ij iq=h _f"kdk nqcs dk ,dek= vf/kdkj gksxk ftls og f'k{kk] fookg ;k vU; ¶ySV dz; djus esa mi;ksx djsxhA _f"kdk bl ¶ySV dks i{kdkj dza 1 ;k 2 esa ls fdlh dks Hkh fodz; ugha djsxh vkSj u gh fdlh Hkh i{kdkj dks fdjk;snkj ds :i esa j[ksxhA pwWafd ijofj'k dh laiw.kZ ftEesnkjh i{kdkj dza 2 ys jgh gS blfy, mDr ¶ySV dks _f"kdk dh lgefr ls ns[kHkky dh ftEesnkjh ysxhA ;fn mDr ¶ySV fdjk;s ij fn;k tkrk gS rks fdjk;s dh jkf'k fdjk;snkj lkh/ks _f"kdk nqcs ds [kkrs esa tek djsxkA ;fn mDr ¶ySV cspk tk;sxk rks cspus ij izkIr jkf'k dk mi;ksx i{kdkj dz-2 rFkk iq=h _f"kdk nqcs vkilh lgefr ls djsaxsA Hkfo"; esa mlds fookg ,oa mPp f'k{kk dh ftEesnkjh dk fuoZgu Hkh i{kdkj dz-2 Lo;a djsaxhA mDr ¶ySV dks i{kdkj dz-1 31-12-2022 ds iwoZ [kkyh dj nsaxsa rFkk ¶ySV dh pkch iq=h _f"kdk nqcs dks lkSai nsaxsA ;fn i{kdkj dza-1 mDr ¶ySV dks 31-12-2022 rd [kkyh djds pkch iq=h _f"kdk nqcs dks ugha lkSisaxsa rks i{kdkj dz- 2 mfpr U;k;ky;hu izfdz;k djus ds fy, Lora= gksaxhA

¼c½ i{kdkjksa us vkilh lgefr ls ;g r; fd;k gS fd tks 3 ch-,p-ds- dk ¶ySV ftldk irk& ¶ySV u- 317 ch Qst Jh th Vkoj ek:fr fogkj] dksVk jk;iqj ¼N-x-½ gS ,oa tks i{kdkj dza- 2 ds uke ij gS] ;g ¶ySV dza- 2 ds uke ij gh jgsxkA i{kdkj daz-1 us bl ¶ySV ds laca/k esa ,d okn ftyk ,oa l= U;k;ky;] jk;iqj ds le{k nk;j fd;k gqvk gS tks okn u- 21,@2018 ¼vfuy dqekj fo- Jherh m"kk flag½ yafcr gS bl le>kSrk vuqca/k ds vraxZr i{kdkj dza-1 okn dks 'kh?kz okil ysaxs rFkk bl laifRr ij Hkfo"; esa dksbZ nkok ugha djsaxsA ¼l½ i{kdkj dza-1 viuh iq=h _f"kdk nqcs dh i<+kbZ ,oa ijofj'k gsrq jkf'k :i;s 15]00]000-00 ¼ianzg yk[k :i;s ek=½ i{kdkj dz-2 dks rhu fd'rksa esa nsaxs ftlds fy, i{kdkj daz-2 lger gSA :- 5]00]000-00 ¼ikap yk[k :- ek=½ dk fMekaM Mªk¶V fnukad [email protected]@2022 iatkc us'kuy cSad] Mh-Mh- u- 806110] dks vkt i{kdkj dza2 dks i{kdkj dza1 }kjk muds vf/koDrk rFkk e/;LFk dh mifLFkfr eas fn;kA 'ks"k jkf'k :-10]00]000 ¼nl yk[k :- ek=½ dks i{kdkj daz-1 }kjk i{kdkj dza-2 dks le>kSrk i= dh leLr 'krksZa dks iw.kZ djus rFkk fookg foPNsn dh fMdzh izkIr djus ij nh tk;sxhA ¼n½ mijksDr le>kSrs dh 'krksZa ds ifjikyu esa nksuksa i{kdkj 'kh?kz gh fuEufyf[kr ;kfpdkvksa dks okil ysus gsrq Rofjr dk;Zokgh djsaxs%& 1- i{kdkj dza-1 }kjk tks okn dza-21,@2018 lafLFkr fnukad [email protected]@2018] ftyk ,oa l= U;k;ky;] jk;iqj ¼N-x-½ esa nk;j fd;k x;k gSA 2- i{kdkj dza-1 }kjk ekuuh; mPp U;k;ky; ¼N-x-½ esa fnukad [email protected]@2022 dks nk;j ;kfpdk CRR No.6567/2022A 3- i{kdkj dza-2 }kjk fnukad [email protected]@2019 dks U;k;ky; Civil Judge Class I, Raipur esa nk;j MJC Criminal Case No.239/2019 (Usha Singh Vs. Anil Dubey)A bl le>kSrk vuqca/k ds ifjis{; esa i{kdkj dza-1 vkxs dksbZ Hkh flfoy vFkok fdzfeuy ¼QkStnkjh½ ekeyk i{kdkj dza-2 rFkk muds ifjokj okyksa ds fo:) nk;j ugha djsxkA blh izdkj i{kdkj dza-2 Hkh i{kdkj dza-1 ds fo:) dksbZ nhokuh vFkok QkStnkjh ekeyk fdlh Hkh U;k;ky; esa nk;j ugha djsxkA

¼/k½ bl le>kSrk vuqca/k ds QyLo:i nksuksa i{kdkj fookg foPNsn gsrq l{ke U;k;ky; esa vkosnu izLrqr djds fookg foPNsn dh fMdzh izkIr djsaxsaA 7- bl le>kSrk vuqca/k dks gLrk{fjr djrs gq, nksuksa i{kdkj lger gq, gSa] dsl FAM No.151/2019 (Anil Dubey Vs. Usha Singh) ds dsl rFkk vU; okn ds laca/k esa vc vkxs mUgsa ,d nwljs ls dksbZ nkok ;k eakx ugha gSA nksuksa i{kdkjksa us vius lHkh fookn e/;LFkrk ds ek/;e ls le>kSrk djds lekIr dj fy, gSaA ;g le>kSrk vuqac/k vkt fnukad [email protected]@2022 dks nksuksa i{kdkjksa }kjk vius vius vf/koDrk ,oa e/;LFkrk dh mifLFkfr esa e/;LFkrk dsUnz] NRrhlx<+ mPp U;k;ky;] fcykliqj esa gLrk{kfjr fd;kA *** *** *** ^^

5. Perusal of the aforesaid mediation report would show that

Flat No.3 situated at Maruti Vihar Kota, Raipur, Palas Complex

would be transferred in the name of their daughter namely

Rishika Dubey and she would be the sole and exclusive owner

of the said property. The said flat would be maintained and

looked after by her mother namely Smt. Usha Singh and in case

of sale, sale proceeds will be used for the benefit of their

daughter. It is agreed in the said term that the possession of

the said flat would be handed over by Anil Kumar Dubey to

Rishika Dubey before 31.12.2022 and in case it will not be

handed over, the other party would be at liberty to take

recourse of law.

6. It is further made clear that in the event of transfer of the

immovable property which is agreed to be transferred, the

same should be made as per registered document of

conveyance and the entire expenses as per settlement would

be borne by husband - Anil Kumar Dubey. So far as, another flat

bearing Flat No.317, B Phase, Shri G Tower, Maruti Vihar, Kota,

Raipur, which is registered in the name of Smt. Usha Singh

Dubey, is concerned, the same would continue in her name and

the suit which has been filed by Anil Kumar Dubey before the

District Judge Raipur bearing Case No.21A/2018 would be

withdrawn. Further, the father (Anil Kumar Dubey) of Rishika

Dubey would pay an amount of Rs.15 Lacs to Smt. Usha Singh

for education and upbringing of their daughter, out of which,

earlier 5 lakhs was paid and now Rs.10 lakhs by way of

Demand Drafts i.e., Rs.5 lakhs each, is paid before this Court

for a decree. Further-more, it was agreed that apart from the

civil suit, another criminal case bearing CRR No.6567/2022 filed

by Anil Kumar Dubey would be withdrawn and MJC Criminal

Case No.239/2019 filed by Smt. Usha Singh shall also be

withdrawn and after this settlement, both the parties shall file

an application for mutual divorce and get a decree of divorce.

7. The terms of the settlement which is arrived at appears to

be in the interest of both husband and wife as serious

allegations have been levelled by them against each other and

it appears that they cannot continue their matrimonial life

further.

8. The parties appeared before the Mediation Center and

eventually the proceedings of mediation came to be concluded

on 27.06.2022 by recording the facts and terms of settlement

deed (agreement letter) wherein it has been stated that the

parties have amicably agreed to end their marital life on the

basis of terms and conditions that are stated in the agreement.

As such, an application under section 13-B of the Hindu

Marriage Act has been filed before this Court along with an

application to waive the cooling period of 6 months for grant of

decree of mutual divorce.

10. The terms of settlement which has been arrived between

the parties would show that they have parted their ways and

the entire settlement has been effected which would form part

of decree as per the terms of mutual agreement between the

wife and husband.

11. The parties i.e., Anil Kumar Dubey and Smt. Usha Singh,

who are present before this Court would submit that they have

been living separately for the last 8 years and came to an

understanding that further they cannot live together as such

they mutually consented to end the marital relations as per the

terms and conditions laid in the agreement which bears the

signatures of both the parties as well as the mediator.

Consequently they filed application under section 13-B along

with the application for waiver of cooling period of six months.

11. The Supreme Court in Amardeep Singh Vs. Harveen

Kaur (2017) 7 SCC page 746 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 was

stipulated to enable the parties to have a rethink so that the

court can 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 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."

12. Applying the aforesaid principles to the present situation of

the case, the facts would suggest that the husband and wife

have been living separately for the last 8 years and initially

the petition for divorce was filed by the husband in May,

2014 and certain proceedings are pending between them.

13. Now pursuant to the amicable settlement arrived in

mediation proceeding, the further amount of Rs.10 lakhs is

handed over by way of drafts to Smt. Usha Singh Dubey by

Anil Kumar Dubey. The settlement arrived between the

parties is reduced in writing, which would go to show that

both the parties have agreed to abide by the terms of the

mutual understanding/agreement and withdraw the

proceedings pending against each other.

14. In view of such mutual understanding and the fact that the

parties are living apart for the last 8 years and there is no

possibility of reunion, we deem it appropriate to waive the

cooling period of six months as required u/s 13-B of the

Hindu Marriage Act. Consequently, the application under

section 13-B for mutual divorce is allowed. Accordingly, the

marriage dated 03.05.2000 in between the parties is

dissolved by a decree of divorce.

15. Let the terms of the settlement agreed between the parties

be part of the decree except the terms embodied at Clause

(l) of the settlement for the reason that the entire amount of

Rs.15 lakhs has been received by Smt. Usha Singh.

16. So far as the appeal filed by Miss Bharti Chandrakar is

concerned, In the light of the amicable settlement reached

between the parties, the findings arrived at Para 20 to 22 of

judgment dated 30.04.2019 whereby certain adverse

remarks have been recorded against Miss. Bharti Chandrakar

would stand expunged.

17. In the result, both the appeals stand disposed of in terms of

the agreement made between the parties. Accordingly a

decree be drawn.

          Sd/-                                Sd/-
    (Goutam Bhaduri)                 ( Deepak Kumar Tiwari )
        Judge                                 Judge




Ajay / Rao