Kanchan Rajeshkumar Ahuja D/O ... vs Rajeshkumar Thnawardas Ahuja
2024 Latest Caselaw 295 Guj

Gujarat High Court

Kanchan Rajeshkumar Ahuja D/O ... vs Rajeshkumar Thnawardas Ahuja on 11 January, 2024

Author: Ashutosh Shastri

Bench: Ashutosh Shastri

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     C/FA/2424/2023                               ORDER DATED: 11/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2424 of 2023

================================================================
     KANCHAN RAJESHKUMAR AHUJA D/O KANHAIYALAL KRIPLANI
                          Versus
              RAJESHKUMAR THNAWARDAS AHUJA
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Appearance:
AMRITA A PATEL(7534) for the Appellant(s) No. 1
MR SANJAY G UDHWANI(10562) for the Appellant(s) No. 1
JAY R SHAH(8428) for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                              Date : 11/01/2024

                        ORAL ORDER

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

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

challenged the impugned judgment and ex-parte decree dated

10.12.2021 passed in Family Suit No. 780 of 2018 by the learned

Judge, Family Court, Ahmedabad and whereby the learned Judge

has allowed the suit and ordered to dissolve the marriage

solemnized between the original petitioner - husband and

original respondent - wife.

2. The brief facts giving rise to present appeal are that the

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marriage between present appellant-wife and respondent-

husband was solemnized on 03.11.2007 as per Hindu rites and

rituals. Thereafter, the appellant and respondent were staying

together as husband and wife in USA and India and after some

time, matrimonial dispute arose between the appellant and the

respondent and, therefore, some time quarrel took place

between them.

2.1 In view of aforesaid facts, the respondent - husband had

filed Family Suit No.780 of 2018 for decree of divorce against the

appellant - wife under Section 13(1) of the Hindu Marriage Act,

1955 (herein after referred to as the "Act"). The Family Court

vide order dated 10.12.2021 allowed the said Family Suit and

ordered that marriage solemnized between the husband and wife

dissolved on the grounds of cruelty and desertion with effect

from the date of decree under Section 13(1)(i-a) of the Act.

2.3 Being aggrieved and dissatisfied with the said judgment

and decree dated 10.12.2021 passed in Family Suit No. 780 of

20148 by learned Judge, Family Court, Ahmedabad, the wife has

filed present appeal.

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3. On 02.01.2024 this Court has passed the following order:-

"When the matter is taken up for hearing, both the learned advocates have jointly submitted that grievance between both the appellant and defendant is resolved outside the Court and consent terms are deducted in writing in the form of memo of understanding affirmed by both the parties on 02.01.2024 and has submitted that in view of this consent terms, the present First Appeal may be disposed of. Learned advocates have kept the appellant as well as the defendant present, have identified and thereby requested to pass suitable order in the interest of said consent terms in the form of memorandum of understanding. Hence, re-list this matter on 08.01.2024."

4. On 08.01.2024, this Court has also passed the following

order:-

"When the matter is taken up for hearing, learned advocates have jointly submitted that the matter is resolved between the parties and in lieu of such, Demand Draft of Rs.36,00,000/- (Rupees Thirty Six Lakh Only) is requested to be deposited in the Registry.

Accordingly, the respondent is permitted to submit the Demand Draft in the Registry till further orders being passed in the present proceedings. Registry is directed to keep intact the Demand Draft till the next date of hearing.

Re-list the matter on 11.01.2024."

5. Heard learned advocate Ms. Amrita Patel for the appellant-

wife and learned advocate Mr. Jay Shah for the respondent-

husband.

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6. It appears from the record that present Appeal is filed by

the respondent - wife of Family Suit No. 780 of 2018. The said

suit was instituted at the behest of the husband under the

provisions of the Hindu Marriage Act. The said suit came to be

allowed by the Family Court, Ahmedabad vide judgment and

decree dated 10.12.2021 and declared the marriage solemnized

between the present appellant and the respondent on

03.11.2007 as annul from the date of 10.12.2021 i.e. from the

date of judgment and decree. The appellant-wife has challenged

the said order mainly on the ground that the the wife was not

served the notice / summons in the suit and decree of annulment

of the marriage solemnized between the husband and wife on

03.11.2007 under Section 13(1) of the Act was passed without

hearing the wife.

7. The appellant has also contended in the present appeal

that the Court below has not considered the fact that there is no

material produced by the wife to the suit to prove the allegation

of cruelty and desertion and therefore the decree passed by

Court below is erroneous, illegal, bad in law and therefore, the

same deserves to be quashed and set aside. The appellant has

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contended that the impugned judgment and order of Family

Court deserves to be quashed and set aside.

8. On 02.01.2024, the parties were personally present and

tendered MOU of settlement. The respective learned advocates

identified the parties and they have urged this Court that the

parties, while entering into the MOU, have agreed to settle their

matrimonial dispute as consensus arrived at between the parties

upon intervention of their respective family members. They have

agreed that the decree passed by the Family Court in Family Suit

No.780 of 2018 by order dated 10.12.2021 whereby the Family

Court has dissolved the marriage solemnized between them on

03.11.2007 be quashed and set aside with consent and they be

further granted decree of divorce with consent as per the MOU.

9. It appears that after the decree was passed by the Family

Court and pending hearing of the present first appeal, the

appellant and the respondent have settled the matrimonial

dispute and arrived at amicable settlement and they have

entered into agreement i.e. Memorandum of Understanding

("MOU" for short) on certain terms and conditions mentioned in

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the MOU. The parties have produced notarized MOU before this

Court.

10. The terms and conditions of the MOU reads as under:-

"1. The marriage between the petitioner and the respondent was solemnized on 03.11.2007 as per the Hindu rites and rituals.

2. The parties have been staying separately since Date 15-10-2009. The parties have, thus, been living separately for a period of more than one year and have not been able to live together. All efforts to resolve their disputes and reconciliation have failed and the marriage between the parties has broken down irretrievably.

3. The parties submit that they have no children from their wedlock and the appellant herein (Wife) also declares that at present she is not pregnant.

4. The parties have arrived at an amicable settlement and wish to part ways peacefully. Parties have decided to dissolve their marriage by mutual consent by obtaining a decree of divorce under section 13(b) of the Hindu Marriage Act, 1955.

5. Therefore, it is respectfully submitted and requested to this Hon'ble Court that, without entering into the merits of the present appeal, it should be allowed with the consent of both parties, and the judgment and ex-parte decree dated 10.12.2021 passed in Family Suit No. 780 of 2018 by Principal Judge, Family Court, Ahmedabad be set aside with consent and this Hon'ble Court also be pleased to grant a decree of divorce under section 13(b) of the Hindu Marriage Act, 1955.

6. It is agreed between the parties that the respondent herein (Husband) shall pay Rs.36,00,000/- (Rupees Thirty Six Lakhs Only) towards permanent alimony as consolidated full & final settlement. Both the parties have exchanged their gold ornaments, valuables, clothes and all other things and nothing remains to be given or taken

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by/or from each other. After taking the aforesaid amount, the appellant herein (Wife) shall be treated to have amicably settled all her disputes towards past, present and future maintenance, permanent alimony and all other claimed and unclaimed dues etc and shall waives all her future right of alimony and maintenance for whatsoever she is entitled to claim.

7. The respondent herein (Husband) would deposit the aforementioned amount of Rs.36,00,000/- (Rupees Thirty Six Lakhs Only) by way of a Demand Draft No.018350 in the name of Registrar, High Court of Gujarat dated 30.12.2023 of HDFC Bank with the registry of the Hon'ble High Court of Gujarat.

8. In addition to the above said amount of Rs.36,00,000/- (Rupees Thirty Six Lakhs Only), the respondent herein (Husnad) agrees to also pay Rs.2,00,000/- (Rupees Two Lakh Only) towards interim maintenance payable in the case filed at Jaipur Court by the appellant herein (Wife) via net banking at the time of filing consent terms before the Hon'ble High Court of Gujarat. After this payment, the appellant herein (Wife) will not have any further claim of any maintenance amount against the respondent herein (Husband).

9. Both the parties agree, assure and give undertaking that they will not have any right, title and interest in any way over each other's movable and immovable properties currently belonging to them and whatsoever would be acquired in future and waive all such rights whatsoever they could claim legally in regards to each other's movable and immovable properties and any other securities. Parties also hereby relieve each other from any past, present and future responsibility of maintenance or alimony towards each other.

10. Both the parties agree, undertake and assure each other that whatsoever other cases if any have been filed by them against each other would get unconditionally withdrawn / disposed of by them with mutual co-operation including the criminal complaint / application logged by the appellant herein (Wife) under the provision of "The Protection of Women from Domestic Violence Act, 2005"

bearing No.12052 of 2014 (147 / 2023) at Jaipur is concerned Court of Magistrate. If due to some reason, it is not withdrawn, then it will be considered disposed of on

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the basis of order/ decree of divorce by mutual consent.

11. The appellant herein (Wife) would be entitled to receive the above referred amount of Rs.36,00,000/- (Rupees Thirty Six Lakhs Only) deposited by the respondent herein (Husband) from the office of this Hon'ble High Court after obtaining decree of divorce by mutual consent (13b) and after withdrawal order of D.V. Case No.12052 / 2014 (147 / 2013) is submitted before the concerned department of this Hon'ble High Court and that the respondent (Husband) shall not raise any objections to the same in any manner.

12. Both the parties agree, assure and give undertaking to each other that, they will not file any suit, petition, complaint or litigation etc against each other or against the family members of each other in future and shall withdraw all the complaints, proceedings if filed anywhere before any authority in this regard whenever the same comes to the knowledge of the parties. In case any such proceedings are pending, the present Mutual Compromise Deed shall be filed there and the parties would appear and make statement before the said court.

13. Moreover both the parties agree, assure and give undertaking to each other that, they will not harass one another in future by any means or methods, and would not take any such illegal action against one another which would result in undue harassment and loss to any of them and their respective family members.

14. Both the parties agree, assure and give undertaking to each other that, they will not misuse any password and information belonging to other party having in their possession and knowledge against each other. Moreover both the parties agree, assure and give undertaking to each other that, they will not misuse photographs of either party having in their possession against each other.

15. The name of the appellant as per petition is Kanchan Rajeshkumar Ahuja whereas as per Adhaar Card and marriage certificate it is Kanchan Kriplani. The name of the respondent as per petition is Rajeshkumar Thanwerdas Ahuja whereas as per Aadhar Card and Marriage certificate it is Rajesh Thanwerdas Ahuja.

16. Both the parties agree, assure and give undertaking

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that they will abide by the terms and conditions laid down in this compromise and ensure that they will not back out and will not breach any of the conditions laid down in the compromise."

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

submitted that in view of the in terms and conditions of the MOU,

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

to pay lump sum amount towards the permanent alimony of

Rs.36,00,000/- by way of Demand Draft. The said amount is

deposited by the appellant before this Court on 08.01.2024 by

way of Demand Draft dated 30.12.2023 bearing No. 018350 and

on receipt of the said Demand Draft the appellant is ready and

willing to withdraw such proceedings initiated by her from the

respective Courts and the same shall be withdrawn by the

appellant.

12. In view of the above, the parties i.e. husband and wife have

urged before the Court that in view of the settlement arrived at

between them, present appeal is to be disposed of as they have

mutually agreed and entered into MOU and since last more than

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fourteen years they are residing separately from each other and

more particularly they are not being pressed to continue the

present proceedings as agreed. Therefore, the appellant and

respondent have mutually agreed that they are not inclined to

reunion since their relationship as husband and wife is now

irreversible situation and completely irretrievable break-down of

marriage relationship and therefore, considering all these facts

they have agreed and executed the MOU and sought the decree

of divorce with consent as per MOU. Hence in view of this even

both the learned advocates representing respective sides have

jointly submitted that the specific consent passed because the

issue is resolved between parties to the proceedings.

Considering the MOU filed by both the sides and the submissions

made therein, we are of the opinion that the judgment and

decree passed by the Family Court whereby the marriage

solemnized between the parties was declared annulled from the

date of the order is required to be set aside with consent. We are

also aware the settled legal position regarding the law on the

subject. We have also perused the recent decisions of the

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

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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. 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 the facts of the

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.

13. Here in the present case, both the parties have amicably

settled their matrimonial dispute by entering into the MOU dated

02.01.2024 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

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fraud but here it is not the case of fraud. It is an admitted fact

that within short span of the marital relation, the parties have

separated and since last more than fourteen years they are

living separately from each other. 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 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.

14. The Hon'ble Apex 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

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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 divorce from the marital relationship, the

same is not against the law.

15. 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 quash and set aside the decree of divorce passed by the

Family Court and seek decree of divorce with consent 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 about anything further. This

MOU is without there being any compulsion and looking to the

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irreparable situation and irretrievable break-down which resulted

into the marriage unworkable to allow the proceedings later,

such a case would result to defeat the purpose of MOU and

distance the parties from the succor of justice.

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

hereby allow this appeal in the terms of MOU. So far as the any

adverse observations made by the Family Court against either

party is concerned, the same are hereby struck off and the same

cannot be come in way of either party.

17. Now, on the basis of the MOU, we are not remitting present

appeal to the concerned Family Court and therefore, we hereby

grant the decree of divorce on the basis of the amicable

settlement arrived at between the parties to the proceedings.

18. Accordingly present Appeal is hereby allowed to the extent

as herein above mentioned. No order as to cost. Decree be

drawn accordingly.

Pending civil applications, if any, shall stand disposed of

accordingly.

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(ASHUTOSH SHASTRI, J)

(HEMANT M. PRACHCHHAK,J)

FURTHER ORDER

Learned advocate appearing for the respondent has

submitted that as per the conditions stipulated in the MOU, the

respondent has deposited the amount of Rs.36,00,000/- before

this Court on 08.01.2024 by way of Demand Draft dated

30.12.2023 bearing No. 018350 drawn on HDFC Bank,

Shahibaug, Ahmedabad in the name of Registrar, High Court of

Gujarat, Ahmedabad, which is to be handed over to the appellant

- wife after due verification and in the prescribed procedure. In

addition thereto, as per MOU, the respondent has to pay further

amount of Rs.2,00,000/- over-and-above the amount of

Rs.36,00,000/-. The such amount has already been transferred

by the respondent - husband on 02.01.2024 in the name of the

appellant - wife through RTGS. The copy of the detailed note and

payment summary of the RTGS are placed on record by the

learned advocate appearing for the respondent, which is taken

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on record. The amount which is deposited in the name of

Registrar, High Court of Gujarat shall remit in the account of the

appellant - wife as per the agreement arrived at between the

parties i.e. after production of withdrawal order of domestic

violence case. In view of the MOU, the terms and agreements are

complied with by the respondent in true and proper spirit. The

decree prayed for by both the parties is hereby allowed and

decree of divorce is to be drawn accordingly. Registry shall draw

decree accordingly.

(ASHUTOSH SHASTRI, J)

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL