Krishnaben W/O Dhairya Dinesh ... vs Dharrya Dinesh Panchal
2023 Latest Caselaw 8029 Guj

                                                                                 NEUTRAL CITATION




     C/FA/2699/2023                               ORDER DATED: 02/11/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                      R/FIRST APPEAL NO. 2699 of 2023
                                   With

CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
                         NO. 2 of 2023
                               In

                      R/FIRST APPEAL NO. 2699 of 2023
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              KRISHNABEN W/O DHAIRYA DINESH PANCHAL
                              Versus
                     DHARRYA DINESH PANCHAL
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Appearance:
TANAYA G SHAH(8430) for the Appellant(s) No. 1
JENIL M SHAH(7840) for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                              Date : 02/11/2023

                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)

1. By way of present Appeal, the appellant-wife has

challenged the impugned judgment and order dated

27.9.2022 passed in Family Suit No. 18 of 2017 by

learned Principal Judge, Family Court, Anand and prayed

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for following relief/s:-

"5(I) That the Hon'ble Court be pleased to quash / set aside adverse findings contained in the Impugned Judgment vis-a-vis issue no. 1 being "whether the plaintiff proves that the opponent has withdrawn from the society of the plaintiff without any reasonable cause" and to modify the Impugned Judgment and decree accordingly.

(II) That the Hon'ble Court be pleased to quash / set aside adverse findings contained in the Impugned Judgment vis-a-vis issue no. 2 being "whether the plaintiff proves that the opponent has treated him with cruelty" and to modify the Impugned Judgment and decree accordingly.

(III) That the Hon'ble Court be pleased to enhance the amount of permanent alimony granted in favour of the Appellant to Rs.25,00,000/- (Rupees Twenty Five Lakh Only) or any other amount that this Hon'ble Court deems appropriate and to modify the Impugned Judgment and decree accordingly.

(IV) That the Hon'ble Court be pleased to direct the Original Plaintiff-Respondent herein to forthwith return to the Appellant herein all Stridhan and jewellery belonging to and owned by the Appellant and which has been lying with the Original Plaintiff-Respondent and / or Original Plaintiff - Respondent's family as more particularly set out in the List of Stridhan and jewellery produced at serial no.48 in the paper book filed along with the present Appeal."

2. The brief facts giving rise to present Appeal are that

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the marriage between present appellant-wife and

respondent-husband was solemnized on 30.12.2014 at

Vadodara. Thereafter, the appellant and respondent were

staying together in Abroad and after some time,

matrimonial dispute arose between the appellant and the

respondent and therefore, some time quarrel was also

took place between them.

2.1 Thereafter, in February 2016 in view of completion of

Viza, the appellant herein returned India and thereafter,

the appellant has not returned back abroad.

2.2 In view of aforesaid facts, the respondent herein had

filed Family Suit No. 18 of 2017 before the Court of

Principal Judge, Family Court, Anand for divorce decree

under Section 13(1) of the Hindu Marriage Act. The

Family Court vide order dated 27.9.2022 allowed the

said Family Suit No. 18 of 2017 and directed the

respondent-husband to pay lumpsum permanent alimony

of Rs.5,00,000/- (Rupees Five Lacks) to the wife under

Section 25 of the Hindu Marriage Act.

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2.3 Being aggrieved and dissatisfied with the said

judgment and order dated 27.9.2022 passed in Family

Suit No. 18 of 2017 by learned Principal Judge, Family

Court, Anand, the wife has filed present Appeal.

3. Heard learned advocate Ms. Tanaya G. Shah for the

appellant-wife and learned advocate Mr. Jenil M. Shah for

the respondent- husband.

4. It appears from the record that present Appeal is filed

by the respondent of Family Suit No. 18 of 2017 i.e. wife.

The said suit was instituted at the behest of the husband -

respondent herein under the provisions of Section 13(1)

of the Hindu Marriage Act, 1955 (herein after referred to

as the "Act") on a ground of cruelty and desertion. The

said suit came to be allowed by the learned Principal

Judge, Family Court, Anand vide judgment and order

dated 27.9.2022 and declared the marriage solemnized

between present appellant and the respondent on

30.12.20214 as annul from the date of 27.9.2022 i.e. from

the date of judgment. The appellant-wife has challenged

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the said order mainly on the ground that the Trial Court

has not considered the submissions made on behalf of

present appellant - original respondent while passing the

impugned judgment and order of annulment of the

marriage solemnized by and between the husband and

wife on 30.12.2014 under Section 13(1) of the Act.

5. The appellant has also contended in the present

appeal that the Court has not considered the fact that

there is no material produced by the respondent original-

applicant to the suit to prove the allegation of cruelty and

desertion and therefore the decree passed by Trial Court

is erroneous, illegal, bad in law and therefore, the same

deserves to be quashed and set aside. The appellant has

also further contended that the averment made in the

plaint with regard to the character of the appellant is far

fetching truth and there was no evidence produced before

the Family Court in this regard and in absence of any

cogent and relevant material, the Court has made certain

remarks for that there was no any proof produced by the

respondent - original applicant and therefore, also the

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impugned judgment and order of Family Court deserves

to be quashed and set aside.

6. The Appeal came up for hearing before this Court on

23.8.2023 and this Court issued notice to the other side

and in pursuance thereto learned advocate Mr. Jenil M.

Shah has received an instructions to appear on behalf of

the respondent husband.

7. It appears that after the decree was passed by the

Family Court and before approaching the Court, the

appellant and the respondent have settled the

matrimonial dispute by executing an agreement i.e.

Memorandum of Understanding ("MOU" for short)

between the appellant and the respondent and thereby

they have mutually agreed to accept the decree of divorce

on certain terms and conditions mentioned in the MOU.

In support of the same, the appellant and the respondent

have filed their respective affidavits before this Court

stating that they have mutually agreed and accepted the

decree of divorce whereby the Family Court has annulled

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the marriage between the husband and wife solemnized

on 30.12.2014.

8. Therefore, now at this juncture, the appellant has

submitted that in view of the subsequent settlement in

terms of the MOU by and between the appellant and

respondent and the conditions mentioned in the said

agreement, both the sides have exchanged their

respective dowry ornaments to each other and there is

nothing remained against each other and in addition

thereto the respondent -husband has paid lumpsum

amount towards the permanent alimony of Rs.5,00,000/-

by way of Account Payee cheque of H.D.F.C. Bank, Anand

bearing cheque No. 00042, dated 10.8.2023 in favour of

present appellant. In view of that both the parties i.e.

husband and wife have urged before the Court that in

view of the settlement arrived at by and between the

appellant and the respondent, present appeal be allowed

to the extent that the observation made by the Family

Court with regard to the character of the appellant and

the father of the respondent may be struck off from the

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order, as they have mutually agreed and entered into

MOU and since last more than 7 years they are residing

separately from each other and more particularly they are

not being pressed to continue as mutually agreed. The

respondent husband is residing in India and frequently

visited U.S.A as he is being resident of U.S.A. and the

appellant wife is also since last 7 years residing in U.S.A.

Therefore, they have mutually agreed that they are not

inclined to reunite and since their relationship as

husband and wife is now in irreversible situation and

completely irretrievable break-down of marriage and

therefore, considering all these facts they have mutually

agreed and executed the MOU and accepted the

impugned decree passed by the Family Court. Hence in

view of this even both the learned advocates representing

respective sides have jointly submitted with specific

consent to pass order in view of the fact that issue is

resolved between parties to the proceedings.

9. We have perused the copy of the MOU along with

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the affidavit filed by both the sides and considering the

averments therein, we are of the opinion that the

impugned judgment and order passed by the Family

Court, whereby the marriage solemnized between the

appellant and respondent was declared annulled from the

date of the order, requires to be confirmed. We have also

observed that the remark made by the Family Court,

while considering the character of the present appellant

wife and respondent husband and his family members, is

unwarranted in view of the fact that both sides have

consented to the same to be withdrawn and therefore, the

said observations are hereby struck off and the same will

not come in the way of either side. We are also aware the

settled legal position with regard to the law on the

subject. We have also perused the recent judgments of

Hon'ble Apex Court in the cases of Naveen Kohli vs.

Neelu Kohli reported in 2006 (4) SCC 558, Shilpa

Sailesh vs. Varun Sreenivasan reporeted in 2023

SCC online SC 544, Smt. Roopa Soni vs. Kamal

Narayan Swami reported in 2023 6 SCALE 402, Dr.

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Nirmal Singh Panesar Vs. Paramjit Kaur Panesar

allias Ajinder Kaur Panesal reported in 2023 SCC

online SC 1297 and also the another judgment of

Alahabadh High Court in case of ETI Tyagi vs.

Prince Tyagi wherein the facts are almost identical to

present Appeal and therefore, for the sake of

convenience, we are referring and relying upon the

decisions of the Hon'ble Apex Court and the judgment of

the Allahabad High Court.

10. Here also in present case, both the parties have

amicably settled their matrimonial dispute through MOU

dated 10.8.2023 and also executed an affidavit in support

of the MOU and also chosen to part with the dowry

ornaments remained with each other and handed over to

each other and also chosen to depart way in a situation,

where the marital relationship had turned completely

irretrievable. The parties have also acted upon the terms

and conditions mentioned in the MOU and therefore, we

are of the view that it is not open for this Court to do

judicial scrutiny of the MOU, except on a ground of fraud

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but here it is not the case of fraud. The Family Court in

the present case has ofcourse made certain observations

with regard to the character of either side, which is not

otherwise warranted since it is an admitted fact that

within short span of the marital relation i.e. within two

years, the parties have separated and since last seven

years they are living separately from each other and even

before the Family Court, the present appellant did not

chose to remain present and therefore, the Family Court

ought to have refrained by making any remarks towards

the character of the either party and the Family Court

ought to have passed the decree mainly on the ground of

desertion. The Family Court has in present case ofcourse

has not gone into the legality of the MOU, as it was not

executed at the relevant point of time but had rather

passed the decree on the ground of cruelty and desertion.

The mandate of the statute remains procedural. The

substantive rights of two parties to settle the matrimonial

conflict by an amicable settlement, in a case where the

settlement so arrived, is with free will and without there

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being any compulsion. The amicable settlement would

serve the object of justice. The object of an amicable

settlement is to put the dispute at rest the entire

controversy recognized by a Court of law in such kind of

cases where the MOU remains unquestionable and with

free will and the parties act upon it freely.

11. The Hon'ble Aopex Court in the case of Amit

Kumar Vs. Suman Beniwal reported in 2021 SCC

online 1270 though observed that the institution of

marriage is to be saved by preventing hasty dissolution of

marriage, but at the same time once the parties have

separated and separation has continued on account of

irretrievable break down since last seven years, in such a

situation the Apex Court taking the aid of judgment

reported in the case of Naveen Kohli (supra) has also

find otherwise that once the marital bond between the

husband and wife is come to irretrievably break down,

then in that circumstance, without litigating further if the

parties have come to an amicable settlement and

mutually agreed to give up their marital rights and to

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divorce from the marital relationship, the same is not

against the law.

12. The parties before this Court have submitted that

they have with their free will and wish accepted the terms

and condition mentioned in the MOU and they have

mutually agreed to accept the decree of divorce passed

by the Family Court 27.9.2022 and they have acted upon

the said MOU and there is no issue remained out of the

said wedlock. Both the parties have parted with their

articles which they have received at the time of marriage

and now they have no any complaint with regard to

anything further. This MOU is without there being any

compulsion and looking to the irreparable situation and

irretrievable break-down which resulted into the

marriage unworkable to allow the proceedings later on,

such a case would result to defeat the purpose of MOU

and distance the parties from the succor of justice.

13. In the peculiar facts and background of this case, we

hereby allow this Appeal in the terms of the decree

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passed by the Family Court. So far as the observations

made with regard to the character of either party is

concerned, the same are hereby struck off and the same

cannot be come in way of either party.

14. Now, on the basis of the MOU and in view of the fact

that the decree of divorce passed by the Family Court

before one year, we are not remitting present Appeal to

the concerned Family Court and therefore, we hereby

confirmed the decree of divorce passed by the Family

Court on the basis of the amicable settlement arrived at

between the parties to the proceedings as they have

mutually agreed and accepted the decree of divorce

passed by the Family Court under the provision of Section

13(1) of the Hindu Marriage Act.

15. Accordingly present Appeal is hereby allowed to the

extent as herein above mentioned. No order as to cost.

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ORDER IN CIVIL APPLICATION NO.2 OF 2023

In view of the order passed in the main First Appeal,

present Civil Application does not survive and the same

stands disposed of accordingly.

(ASHUTOSH SHASTRI, J)

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI