Arun B. Saharya, J.

( 1 ) BY this common judgment, I propose to dispose of C. R. 1400/89 and P. A. O. 264/89 filed by the husband Dhanjit praying for modification of an order dated 5-9-89 and for setting aside an order made by Ms Kanwalinder, A. DJ. on 6-11-89 as both the impugned orders arise out of one petition filed by the husband under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (the Act) against the wife Beena for dissolution of their marriage by a decree of divorce on the ground of cruelty.

( 2 ) THE parties were married according to Hindu rites on 12-3-82. A female child Shaista was born from wedlock on 4-7-83. Differences arose between the parties. They started living separately from each other from 5-6-84. They have not been able to live together since then. The petition under Section 13 (1) (ia) of the Act was filed by the husband on 11-2-85.

( 3 ) DURING the proceedings, efforts were made, before framing issues as also thereafter, to bring about reconciliation between the parties but in vain. On 6-1-88, 21-3-89 and 5 5-89 statement of the husband was recorded as Public Witness. 2. Thereafter, when the case was fixed for his remaining evidence, the parties filed two joint applications on 59-89, one under Order 6 Rule 17 and Section 151 of Civil Procedure Code praying that the petition for divorce filed by the husband may be treated as a petition under Section 15-B (1) of the Act, and the other under Section 13-B (2) for a decree of divorce by mutual consent.

( 4 ) IT was stated in the application for amendment that the marriage between the parties had broker down completely and irretrievably. "now there is absolutely no chance of any reconciliation between the parties or their living together". It was further averred "that both the parties hereby withdraw all the allegations against each other and they mutually agree that their marriage may be dissolved by a decree of divorce"

( 5 ) IN the other application under Section 13-B (2) of the Act, it was further state that the parties had mutually and amicably settled,all the other disputes between them, that almost all the articles belonging to the wife had been returned to her and for the others she had been paid by a bank draft, and that nothing was due to the wife "on account of stridhana and all other claims". With reference to the financial and earning capacity of the parties, the wife agreed and declared that she will not claim any permanent alimony and maintenance from the husband at any time. In view of the exclusive and sole custody of the minor child with the mother since 26-6 84 as also her financial capacity to independently maintain and educate the child, it was acknowledged that it would be clearly in the welfare of the minor child that she should continue to remain in exclusive and sole custody of her mother and the parties agreed "that it will be the sole liability and responsibility of the respondent to maintain the said minor child Shaista and also to look after the education and all other interests of the said minor child including her marriage, without any interference and/or any hinderance whatsoever by the petitioner and also that all expenses etc. in relation thereto and in connection therewith shall be borne by the respondent alone and that the petitioner shall in no way be liable for the same and also that no claim whatsoever shall ever be made by anyone whomsoever against the petitioner for the same". In view of this comprehensive settlement between the parties. they prayed for a decree of divorce under Section 13-B of the Act and for a provision to be made in the decree with regard to permanent alimony and maintenance custody of the child as also disposal of property as envisaged by Sections 25, 26 and 27 of the Act.

( 6 ) BY the first impugned order dated 5th September 1989, the trial Court "allowed" the application for amendment under Order 6, Rule 17, CPC. It is clear from this order that the Court again made an attempt to bring about

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