Gujarat High Court
Priyankkumar Maheshkumar Patel vs Jignaben W/O Priyankkumar Patel D/O ... on 6 September, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2849/2021 JUDGMENT DATED: 06/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2849 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO
any order made thereunder ?
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PRIYANKKUMAR MAHESHKUMAR PATEL
Versus
JIGNABEN W/O PRIYANKKUMAR PATEL D/O GORDHANBHAI SHIVRAMDAS
PATEL
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Appearance:
MRS YOGINI V PARIKH(2163) for the Appellant(s) No. 1
MS NOOPUR V PARIKH(11248) for the Appellant(s) No. 1
MR. KALRAV K. PATEL FOR MR.JAIVIK UDAY BHATT(7319) for the
Defendant(s) No. 1
MR UDAY H BHATT(6457) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 06/09/2024
Page 1 of 13
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NEUTRAL CITATION
C/FA/2849/2021 JUDGMENT DATED: 06/09/2024
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This appeal has been mentioned before us, in light of the fact
that the settlement agreement arrived at between the appellant as
well as the respondent, which has been signed by the respective
parties on 05.09.2024. We note that this Court had admitted the
appeal on 11.10.2021. Thereafter, on 20.12.2021, the Division Bench
of this Court presided by (Honourable Mr. Justice J. B. Pardiwala and
Honourable Mr. Justice Niral R. Mehta), had passed the following
order:
"1. Pursuant to the order passed by this Court dated
11th October 2021, Rohit Gordhanbhai Patel (brother
and POA holder of respondent-Jignaben) and the
appellant-Priyankkumar Maheshkumar Patel (husband)
are personally present in the Court today.
2. We heard this matter for quite some time so as to
bring around some amicable settlement between the
parties. However, it appears that all of a sudden the
dispute is not likely to be resolved. The facts of the
case are quite peculiar and at the same time very sad
too. Here is a case wherein the parties got married on
25th November 2005 at Ahmedabad. The parties, after
getting married, applied for student visa. The wife was
granted student visa while the husband was declined.
The marriage was consummated while the parties were
in India. It appears that while the respondent was in
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India, she conceived. She left for the U.S. on the
strength of the student visa, and while in the U.S., she
delivered a baby-boy. It is very disheartening to note
that while the child was just 9 months' old, the mother,
through one of her relatives, sent him back to India.
3. We are informed that the mother is in the U.S. past
almost 10 years. She has not seen her son growing up.
Today, the son is ten years of age. All these ultimately
led to matrimonial disputes between the parties. In the
mean time, the appellant-husband instituted Family
Suit in the Family Court at Ahmedabad for a decree of
divorce. The suit came to be dismissed. The Family
Court declined to grant decree of divorce in favour of
the husband. While dismissing the suit instituted by the
husband, the Family Court directed the husband to pay
Rs.20,000=00 per month towards the maintenance of
the minor son who, as on date, is being looked after by
his maternal-uncle ('mama'). The final order passed by
the Family Court, Ahmedabad, reads thus :
"FINAL ORDER
1. The present petition which is filed under Section
13(1) of the Hindu Marriage Act, is hereby ordered to
be rejected.
2. So far as the claim for the permanent alimony for the
respondent is concerned, it is hereby ordered to be
rejected.
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3. It is further ordered that the petitioner to pay
Rs.20,000/- (Rupees Twenty Thousand Only) p.m.
towards the maintenance for the minor child to his
maternalgrandfather under Section 26 of the Act w.e.f.
17.9.2016 as per Application Exh.30.
4. There shall be no order as to costs.
5. Decree to be drawn accordingly."
2. Reading of the order, we note the circumstances under which
the dispute has arisen and the Court then had attempted an amicable
settlement. The order in the year-2021 also notes that the wife has
been in the United State of America for the past ten years.
3. Today on the mention, when the matter was taken up, the
learned counsels for the respective parties i.e. the appellant-husband
who has failed to get a decree of divorce and the respondent-wife,
who is represented by her brother- power of attorney holder Shri.
Rohit Gordhanbhai Patel, whose presence was even recorded in the
order dated 20.12.2021, had placed the settlement agreement, which
reads as under:
SETTLEMENT AGREEMENT
"This settlement agreement is executed on 2nd day
of September, 2024, between Priyankkumar
Maheshkumar Patel, (hereinafter referred as "the
First Party") aged years, residing at A/4, Mamta
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Complex, Nr. New Mrudul Park, Sola Road,
Ghatlodia, Ahmedabad; And Jignaben D/o.
Gordhanbhai Patel (hereinafter referred as "the
Second Party") aged 42 Years (Approx.), residing at
USA; being represented through her Power of
Attorney Rohit Gordhanbhai Patel (brother), for
settling the matrimonial dispute going on
between them for which Legal Proceedings are
pending before the Hon'ble High Court of Gujarat
at Ahmedabad.
Whereas, the First Party and the Second Party had
got married on 25th November, 2005 at
Ahmedabad as per Hindu Customs and the said
marriage was registered before the Registrar of
Marriage, Ahmedabad-6 (Naroda). Out of the said
wedlock, a son named Kush is born on
28.07.2011at the United States of America.
1. Short facts of the case:
(a) After marriage, since it was desire of both the
parties to study further at United States of
America and settled there, they applied for the
visa. The Second Party got the student Visa and
started studying over there as per wish of the first
party, whereas first party couldn't get the visa.
During her visit to India, the Second Party
conceived the child and a son named Kush born on
28.07.2011 at the United States of America as per
collective decision of both the parties.
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(b) Whereas, due to restriction imposed on the
Visa; the second party could not return to India till
the time the second party could obtain the Status
of Permanent Residence. First party did not
succeed in getting visa. Because of this, for many
years, both the parties were compelled to live at
separate places. Due to which, certain matrimonial
disputes cropped up between the parties.
(c) First Party filed a Family Suit for divorce
before Ld. Family Court at Ahmedabad under
Section 13 of the Hindu Marriage Act, 1954 being
Family Suit no. 1617 of 2015 on various grounds.
The First Party had made allegation on the
Character of the Second Party, which otherwise
was only a gospel truth. The said Suit was rejected
by the Ld. Family Court, Ahmedabad vide
judgment and decree dated 26.07.2021.
(d) Aggrieved by impugned judgement and
decree dated 26.07.2021, passed by Ld. Family
Court in Family Suit No. 1617 of 2015; First Party
preferred appeal before Hon'ble High Court of
Gujarat at Ahmedabad vide First Appeal No. 2849
of 2021.
(e) During the pendency of the said First Appeal,
the parties to the suit along with their respective
Advocates had settled the dispute and have
agreed & decided to part their ways on following
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terms and condition:
2. Terms and Conditions:
(A) That the First Party has apologised to the
Second Party for the allegations made in the
Family Suit, as the same were baseless and were
not true at all. And the Second Party has accepted
the said apology.
(B) That the First Party shall return all the "Stree
Dhan" of the Second Party, as per list given and as
under:
1 pair Bangles,
1 pair Necklace with earrings,
3 pair Earring,
1 Rudrakasha mala,
2 piece of rings,
1 Pandal, Jewellery box
all they are received by the second party herewith
settlement agreement on 2.09.2024.
(C) That the First Party shall continue to pay Rs.
10,000/- p.m. towards maintenance amount for
minor son till he attains majority (i.e. 18 years) as
per direction in para-6 of order dated 21.12.2023
of Hon'ble High Court in First Appeal No. 2849 of
2021.
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(D) That Rs.5,00,000/- (Five Lakh) is deposited
before Hon'ble High Court in compliance of
direction in para-6 of the order dated 20.12.2021
in First Appeal No. 2849 of 2021. That
Rs.5,00,000/- (Five Lakh) deposited before this
Court along with interest accrued on the said
deposit of Rs. 5 Lakh shall be disbursed in favour
of the Power of Attorney Holder of the Second
Party (mama).
(E) That the second party shall not claim any
amount towards maintenance from the first party.
(F) The First Party declares that the custody of the
minor son Kush shall permanently remain with the
Second Party and no right, for the custody or
guardianship of the minor son, shall be claimed by
the First Party. The Second Party shall, for all
purposes, be treated as the sole Natural and Legal
Guardian as well as custodian of the minor Son.
(G) The First Party further agrees that as and when
required he shall extend full cooperation and
provide consent in the legal documents that
would be required for the minor Son.
(H) That the Second Party shall give consent to
the First Party, in the First Appeal pending before
the Hon'ble High Court and will provide all
assistance and support in taking Divorce.
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(I) That the Parties have further agreed that the
above terms shall be complied fully and only
thereafter the same shall be presented before the
Hon'ble High Court for disposal of the First Appeal
on the ground of Settlement.
3. The parties to this settlement agreement
further agrees to abide by the aforesaid terms of
settlement; failing which the parties shall be at
liberty to initiate all legal proceedings that are
available to them under the Law and shall be at
liberty to raise all the contentions as may be
available to them under Law.
4. In the event of failure to comply with this
agreement, this settlement agreement would be
construed as an admission of any rights or
labilities by either of the party.
5. We, the parties to this Settlement
Agreement have read over the terms and
condition mentioned herein above along with the
contents stated hereinabove. The same are
explained to us in our vernacular language i.e.
Gujarati and this settlement agreement is
executed by the parties out of free will and
consent.
The parties are neither coerced nor
pressurized or influenced in any manner,
whatsoever."
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4. As recorded in the order dated 20.12.2021, the amount of Rs.5
Lakhs was deposited before this Court in the Registry and as per the
order, it was invested in a Nationalized Bank by way of a non-
cumulative fixed deposit, for which, monthly interest was to accrue
and to be paid in favour of the minor son through the maternal grand-
father and maternal uncle. We are informed by the power of attorney
holder of the respondent Shri. Rohitbhai Patel, that the interest
amount as directed by this Court, has not been withdrawn for and on
behalf of the minor son. We are also informed that the minor son has
now attained the age of 12 years and is with the wife residing in the
U.S.A. and has gone there for pursuing further studies, as the son
(Kush) having been borne in the U.S.A., is a U.S.A. citizen by birth.
5. Reading the terms and conditions of the settlement arrived at
between the parties, and in light of the order passed by this Court on
20.12.2021, it is apparent that the parties have now decided to
mutually separate from each other on the conditions recorded in the
settlement agreement.
6. In light of the settlement arrived at, both the learned counsels
for the respective parties agree that they will approach the Family
Court at Ahmedabad by filing a petition for divorce by mutual consent
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under Section 13(B) of the Hindu Marriage Act, 1955. The order that
we have passed today and also the order dated 20.12.2021 quotes
together with the terms of settlement recorded in this order, shall be
read as part of the mutual consent petition filed by both the parties.
7. Since as recorded in the earlier order of 20.12.2021, the
respondent-wife being the resident of U.S.A. and represented by the
brother Shri. Rohit Gordhanbhai Patel, shall be competent to sign the
mutual consent petition on behalf of the respondent-wife before the
Family Court.
8. Learned counsels for the respective parties agree that the
petition for mutual consent shall be filed on or before 20.09.2024. On
the consent divorce petition being filed before the Family Court at
Ahmedabad and looking to the fact that the parties are having staying
separately more than for a period of ten yeas now, the Trial Court
shall pass a decree of divorce under Section 13(B) of the Hindu
Marriage Act, 1955, within a period of four weeks from the date of
filing of the application before it.
9. We are conscious of the fact that the appellant had filed this
appeal, challenging the order refusing divorce; however, in light of the
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settlement arrived at between the parties and with the change of
circumstances where the parties want to mutually separate, we
dispose of the First Appeal without entering into the merits of the
decree passed by the Family Court at Ahmedabad in the appeal and
the Family Court on the fresh application being filed for mutual
consent, notwithstanding the decree passed in Family Suit No.1617 of
2015, which was a subject matter of challenge before us, shall pass a
divorce decree by mutual consent.
10. It will be open for the Family Court to ascertain the wishes of
the respondent-wife, who is a resident of the U.S.A. through hybrid
mode on the date as convenient to the parties.
11. With the aforesaid order and with the direction that the parties
shall abide by the settlement and the same shall be filed before the
Family Court quoting the aforesaid orders passed today, which shall
be treated as part of the application for mutual consent, a decree of
divorce by consent on the aforesaid terms, shall be passed by the
Family Court in the time stipulated hereinabove.
12. In light of the terms of the settlement arrived at, the amount of
Rs.5 Lakhs deposited in the Registry of this Court, together with
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interest that has accrued, shall be transferred through RTGS mode in
the account of the power of attorney holder Shri. Rohit Gordhanbhai
Patel. Learned counsel for the respondent shall supply the details of
the bank account of the concerned power of attorney holder and the
Registry shall transfer the amount in account of the concerned power
of attorney holder and on taking up the receipt from such power of
attorney through his counsel, the appeal stands disposed of,
accordingly.
13. It is clarified that in accordance with the terms of the
settlement, till the son (Kush) attains the majority, the appellant shall
continue to deposit the amount of Rs.10,000/- as per the directions in
the order dated 20.12.2021, as per the convenience of the parties
concerned.
14. With the aforesaid observation and direction, the present First
Appeal stands disposed of. Liberty to revive in case of any difficulty.
(BIREN VAISHNAV, J)
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
