Sunil vs Smt. Arti
2023 Latest Caselaw 7200 MP

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                  BEFORE
                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                     &
                              HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                                   ON THE 3 rd OF MAY, 2023
                                               FIRST APPEAL No. 1433 of 2018

                          BETWEEN:-
                          SUNIL S/O NATHULAL MEENA, AGED ABOUT 30 YEARS,
                          OCCUPATION: SERVICE R/O MIG 81 MEGHDUT NAGAR
                          WARD NO. 39, MANDSAUR (MADHYA PRADESH)

                                                                                         .....APPELLANT
                          (SHRI LOKESH MEHTA, LEARNED COUNSEL FOR THE APPELLANT)

                          AND
                          SMT. ARTI W/O SUNIL MEENA, AGED 28 YEARS,
                          OCCUPATION: TUITION AND SILAI ETC. KUDALIYA
                          ROAD, CHAUMHALA, DISTT. JHALAWAR (RAJASTHAN)

                                                                                       .....RESPONDENT
                          (SHRI RITU RAJ BHATNAGAR, LEARNED COUNSEL FOR THE
                          RESPONDENT)

                                T h is appeal coming on for order this day, JUSTICE SUSHRUT

                          ARVIND DHARMADHIKARI passed the following:
                                                              ORDER

Heard on I.A. No. 3617/2023, an application under Section 13(B) of the Hindu Marriage Act, 1955 (for short "the Act of 1955" hereinafter).

T h e present appeal has been filed by the appellant (husband) being aggrieved by the judgment and decree dated 17.04.2018 passed by the Principal Judge, Distt. Mandsaur, in HMA No. 212/2016, whereby the application seeking divorce under Section 13 (1) of the Act on the ground of cruelty and dissertation has been rejected.

Signature Not Verified Signed by: SEHAR HASEEN Signing time: 5/4/2023 7:43:33 PM

The aforesaid joint application has been filed by the parties under Section 13 (B) of the Act of 1955 seeking divorce by mutual consent.

The brief facts of the case are that the appellant and the respondent got married on 22.04.2015 according to Hindu rights and customs. They had no issues from the said wedlock. Both of them are residing separately since the last more than 08 years. An application was filed by the appellant/husband before the family Court on the ground that respondent/wife is ignoring the daily routine of the appellant and her behaviour is also not good. It has been further alleged that the respondent is not taking care of the old aged mother and father of the applicant and is not ready to live with him. The Presiding Officer, Family Court

after taking evidence of both the parties dismissed the application filed by the appellant on 17.04.2018. years. On account of irreconcilable differences, the marriage has been irretrievably broken down between the parties. Also there remains no possibility of reconciliation, therefore, the present first appeal has been filed before this Court. This Court also tried its level best to restitute the conjugal rights of the parties, but to no avail. During pendency of present appeal, the appellant and the respondent have decided to obtain a decree of divorce, therefore, they have filed the joint application for grant of divorce by mutual consent. It is stated that since both of them are already living separately, therefore, pendency of the divorce petition for more than six months would seriously affect the future of both the appellant and the respondent. Moreso, the appellant has already paid Rs. 7,50,000/-(Rupees Seven Lakhs Fifty Thousand) vide D.D. No. 797652 dated 29.04.2023 to the respondent/wife and the said DD has already been accepted by her as full and final settlement towards permanent alimony. Hence, it is prayed that in the light of the Apex Court judgment in the

Signature Not Verified Signed by: SEHAR HASEEN Signing time: 5/4/2023 7:43:33 PM

case of Amardeep Singh Vs. Harveen Kaur reported in AIR 2017 SC 4417, the cooling period of six months may be waived off. It is further stated that lot of efforts have been made by both the parties as well as this Court to dissolve the dispute amicably but the same has failed and respondent and appellant are adamant to live separately and there is no possibility of compromise between the parties in future.

The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur(supra) has held as under:-

"Applying the above to the present petition, 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 13B(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 XXXIIA 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."

In view of the above judgment passed by the Apex Court and taking into consideration the fact that now the parties have amicably settled the matter and are already living separately and there are no chances of any settlement between Signature Not Verified Signed by: SEHAR HASEEN Signing time: 5/4/2023 7:43:33 PM

them, hence, the cooling period of six months is also waived off.

The factum of compromise has been verified in the Court itself since both the parties were present before this Court and have amicably presented application u/S 13(B) of the Act of 1955. The application is duly supported by an affidavit of both the parties.

On the basis of aforesaid, the application filed by both the parties under Section 13(B) of the Act is allowed. The impugned judgment and decree dated 17.04.2018, passed in HMA Case No. 212/2016 by the Principal Judge,Family Court ,Mandsaur is hereby set aside. The marriage solemnized between the appellant/husband and respondent/wife is dissolved.

Let a decree be drawn granting divorce by mutual consent u/S 13(B) of the Act of 1955 which shall form part of the terms and conditions enumerated in the aforesaid application.

Appeal stands disposed of. No order as to cost.

                               (S. A. DHARMADHIKARI)                      (PRAKASH CHANDRA GUPTA)
                                        JUDGE                                      JUDGE
                          sh




Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 5/4/2023
7:43:33 PM