Dineshbhai Udesinh Ajediya vs Sonalben Dineshbhai Ajediya
2024 Latest Caselaw 1295 Guj

Gujarat High Court

Dineshbhai Udesinh Ajediya vs Sonalben Dineshbhai Ajediya on 14 February, 2024

Author: Biren Vaishnav

Bench: Biren Vaishnav

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       C/FA/2099/2018                                   ORDER DATED: 14/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 2099 of 2018
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                          DINESHBHAI UDESINH AJEDIYA
                                    Versus
                         SONALBEN DINESHBHAI AJEDIYA
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Appearance:
MR V B MALIK(5071) for the Appellant(s) No. 1
GAURAV P GOYAL(8861) for the Defendant(s) No. 1
MR. SAHIL M SHAH(6318) for the Defendant(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
        and
        HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                    Date : 14/02/2024

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. This Appeal under Section 28 of the Hindu Marriage Act, has been filed by the appellant - Dineshbhai Udesinh Ajediya challenging the judgment and order dated 31.03.2018 passed by the Family Court at Dahod, in Hindu Marriage Petition No.08 of 2016 (Old No.14 of 2011) for seeking divorce from his wife, the respondent herein.

2. Before the Family Court, it was case of the appellant that he wants divorce on the ground of desertion and cruelty. Today, when the appeal has been taken up for hearing, Mr. Sahil Shah, learned advocate for the respondent - wife would rely on an affidavit filed by the wife - Sonalben Dineshbhai Ajediya, which reads as under:

"I have decided to give my consent for a divorce by mutual consent. Accordingly, I state that the marriage between the parties may kindly be dissolved under Section 13-B of the Hindu Marriage Act, 1955. I state that the parties have been living separately since 2010. Accordingly, the requirement of cooling off period under

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C/FA/2099/2018 ORDER DATED: 14/02/2024

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Section 13-B of the Hindu Marriage Act, 1955 may kindly be waived and divorce may kindly be granted under Section 13-B of the Hindu Marriage Act, 1955, and a decree may accordingly be drawn."

3. By an order dated 12.02.2024, we had recorded the presence of the parties through hybrid mode before this Court. Both the learned advocates for the respective parties would submit that it is open for this Court in an appeal filed where the decree of divorce is rejected, to pass an appropriate decree modifying it to that for one of a decree of divorce by mutual consent under the provisions of Section 13-B of the Hindu Marriage Act. Several decisions have been cited before us.

4. In a decision of the Division Bench of this Court in the case of Jigneshbhai Vinodbhai Patel Vs. Neelamben Jigneshbhai Patel in First Appeal No.2854 of 2017 dated 01.09.2017, an appeal was filed by the husband challenging the decree of divorce granted by the Family Court allowing the wife's petition recording the consent terms arriving at between the parties, the Division Bench based on the consent terms, converted the decree of divorce on the ground of cruelty and ill-treatment to that of a decree into a one by mutual consent.

5. The order of Division Bench reads as under:

"1. This First Appeal is filed by the husband. The respondent wife had filed a petition for dissolution of marriage before the Family Court, Ahmedabad on the ground of cruelty and illtreatment by the husband. The Family Court by judgment dated 5.1.2015 allowed the petition and dissolved the marriage on the ground of cruelty.

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2. After these developments, it appears that in the proceedings for custody of the minor son of the couple, the parties arrived at a settlement which was noticed by the Division Bench of this Court in its judgment dated 29.7.2015 in First Appeal No.1154/2015. The Division Bench took note of the agreement executed by the parties and disposed of the appeal in terms of such agreement. One of the terms of the agreement was that the parties would file appeal against the judgment of the Family Court dissolving the marriage on the ground of cruelty and request the Court to convert the same into a decree of dissolution of marriage by mutual consent.

3. Pursuant to these developments, the husband filed the present appeal in which we had previously condoned the delay. Advocates from both the sides were present before us. Previously also we were informed that the advocates had made all attempts to conciliate between the parties and having failed in the attempt brought about the resolution which was recorded in writing by way of consent terms dated 29.7.2015.

4. Record would suggest that the appellant and respondent had got married on 2.5.1999 according to Hindu rights. Out of such wedlock, one son Aryan was born on 14.4.2002. Later on due to disputes parties separated which led the wife to file a divorce petition before the Family Court, Ahmedabad.

5. The consent terms dated 29.7.2015 was entered into between the parties bringing an end to all disputes arising out of their matrimonial relations. The part of the consent terms was given effect to by the Court on 29.7.2015, a formal portion of converting the divorce decree into one by mutual consent remained. To give legal shape to the same, present appeal has been filed.

6. Under the circumstances, the First Appeal is allowed. The judgment of the Family Court dated 5.1.2015 is modified by providing that there shall be dissolution of

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marriage between the appellant and the respondent by mutual consent from the original date of the judgment of the Family Court. We provide this special date since we are informed that since husband had not challenged the judgment for a considerable period of time after the period of limitation for filing the appeal against the judgment of Family Court had expired, wife has remarried.

7. First Appeal along with Civil Application stands disposed of accordingly."

6. Considering this decision and particularly, in light of the affidavit filed by the wife agreeing to the consent for divorce by mutual consent and stating that both the appellant and the respondent have been living separately since the year 2010, it is in the fitness of the things to quash and set aside the judgment and order dated 31.03.2018 passed by the Family Court, Dahod in Hindu Marriage Petition No.08 of 2016 by which the appellant's application for divorce has been rejected.

7. It has come on record that both the husband and the wife have been mutually living separately from the year 2010, therefore, while quashing and setting aside the judgment and decree dated 31.03.2018 passed by the Family Court in Hindu Marriage Petition No.08 of 2016, we remand the proceedings before the competent Family Court at Dahod. The Family Court shall treat the Hindu Marriage Petition No.08 of 2016 filed under Section 13(1-A) of the Act by the appellant as one Hindu Marriage Petition converted into a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act. On such conversion, the Family Court shall treat Hindu Marriage Petition No.08 of 2016 as one being under

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Section 13-B of the Act, the parties to this appeal shall remain present before the Family Court at Dahod in the proceedings of the Hindu Marriage Petition No.08 of 2016 for recording their mutual consent for dissolving the marriage and the petition may be disposed of by the Family Court accordingly.

8. We may add that in light of the affidavit, which we have reproduced hereinabove, it is evident that the parties have been living separately since the year 2010 and therefore, there is a case of waiving off the cooling period taking into consideration this is on the date which we fix i.e. 29.02.2024, both the appellant and the respondent i.e. the applicant and respondent shall appear before the Judge, Family Court, Dahod and that date itself or any subsequent date record the mutual consent. On the petition for mutual consent, the Court shall pass an order dissolving the marriage between the parties as expeditiously as possible, preferably within two weeks from the time on which date the recording the mutual consent by the presence of the parties is done.

9. The First Appeal is allowed in light of the aforesaid order. The appeal is disposed of. Direct service is permitted.

A writ of this order be sent to the Family Court, Dahod, for necessary compliance.

(BIREN VAISHNAV, J)

(NISHA M. THAKORE,J) Y.N. VYAS