Ashish vs Smt. Sonal
2023 Latest Caselaw 7296 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 4 th OF MAY, 2023
                                               FIRST APPEAL No. 1580 of 2019

                          BETWEEN:-
                          ASHISH S/O ASHOK MITTAL, AGED ABOUT 26 YEARS,
                          OCCUPATION: SERVICE R/O-35, SIKH MOHALLA MAIN
                          ROAD, INDORE (MADHYA PRADESH)

                                                                                        .....APPELLANT
                          (SHRI AMAR SINGH RATHORE-ADVOCATE)

                          AND
                          SMT. SONAL W/O ASHISH MITTAL, AGED ABOUT 26
                          YEARS, OCCUPATION: SERVICE FLAT NO. 103, ROYAL
                          HEITHTS, 26/3, MANORMAGANJ, INDORE (MADHYA
                          PRADESH)

                                                                                      .....RESPONDENT
                          (SHRI RANJEET SEN- ADVOCATE)

                                Th is appeal coming on for .orders this day, JUSTICE SUSHRUT

                          ARVIND DHARMADHIKARI passed the following:
                                                              ORDER

Heard on IA No. 3145/2023, an application under Section 13(B) of the Hindu Marriage Act, 1955 ( in short ... "the Act").

The appellant-Ashish (husband) and respondent-Sonal (wife) are also present before this Court.

The present First Appeal has been filed by the appellant being aggrieved by the judgment and decree dated 26.07.2019 passed by Second Additional Principal Judge, Family Court, Indore, in HMC No. 956/2013, whereby the Signature Not Verified Signed by: VARSHA DUBEY Signing time: 5/9/2023 10:54:53 AM

application seeking divorce under Section 13(1) of the Act, has been rejected. The aforesaid joint application has been filed by the parties under section 13(B) of the Act seeking divorce by mutual consent.

Brief facts of the case are that the appellant and the respondent got married on 04.12.2011 at Indore as per Hindu rights and customs. Out of the wedlock, there are no issues. The respondent(wife) denied to establish physical relationship on the very first night after their marriage and she said that she got married forcefully on the pressure of her parents and thereafter she became unconscious. She did not use to do any household works rather than used to quarrel with the husband and his parents. The appellant and his parents made all

the endeavors to bring the respondent back but she refused to come. It is also alleged that the respondent had some disease prior to her marriage but this fact was not disclosed to the appellant. However, the Family Court rejected the application for divorce filed by the appellant on the ground of cruelty.

Being aggrieved, the appellant has filed the present appeal. This Court made all efforts for reconciliation but however the same failed and now it appears that there is no possibility of reconciliation.

During pendency of the appeal, appellant and the respondent have decided to obtain a the decree of divorce, therefore, they have filed the present joint application for grant of divorce by mutual consent. It is stated that since both of them are already living separately since more than 12 years, therefore, pendency of the divorce petition would seriously effect future of both the appellant and respondent. As per the application, the appellant has paid Rs.1,00,000/- to the respondent on 19.04.2023 and another Rs.1,00,000/- shall be paid as per the agreement in full and final settlement towards permanent

Signature Not Verified Signed by: VARSHA DUBEY Signing time: 5/9/2023 10:54:53 AM

alimony.

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

The factum of compromise has been not verified by this court since both the appellant as well as the respondent were present at the time of hearing. On the basis of the aforesaid, the application filed by both the parties under Section 13(B) of the Act is allowed. The impugned judgment and decree dated Signature Not Verified Signed by: VARSHA DUBEY Signing time: 5/9/2023 10:54:53 AM

26.07.2019, passed by the Second Additional Principal Judge, Family Court, Indore, is set aside. The marriage solemnized between appellant (husband) and respondent (wife) is dissolved.

The appeal stands disposed of. No order as to costs. Let a decree be drawn accordingly.

Record of the Family Court be sent back.

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




Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 5/9/2023
10:54:53 AM