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2019 Supreme(Raj) 2954
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mohammad Rafiq, Narendra Singh Dhaddha, JJ.
Jyoti Gupta – Appellant
Versus
Pankaj Gupta – Respondent
D.B. Civil Miscellaneous Appeal No. 476 of 2017, D.B. Civil Misc. Stay Application No. 3399 of 2017 and D.B. Civil Miscellaneous Appeal No. 4809 of 2017
Decided On : 04-10-2019
Advocate Appeared:
For the Appellant : Bipin Gupta
For the Respondent: Vipul Jain
Point of law:
since the cooling off period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
Headnote:
Hindu Marriage Act, 1955 - Sections 13 and 27- Indian Penal Code, 1860 - Sections 323, 341 and 325 –Restitution of conjugal rights – Divorce – Mutual consent -Considering that the parties have decided to settle of their disputes, rather than requiring them to undergo the further trauma of approaching this court for getting the proceedings pending in various courts quashed and set aside.
Facts of the case:
Appeals remained pending before this Court for last more than two years. Both the parties jointly filed an application with the prayer that the proceedings in the present cases may be converted into one under Section 13-B of the Hindu Marriage Act, 1955. Since they have been living separately for last seven years, the waiting period of one year of the first motion referable to Section 13B(1) of the Hindu Marriage Act, 1955 stands completed and prayer is made that the second motion of six months under Section 13B(2) may be waived in the facts of the present case. The contents of the joint application.
Finding of the court:
Which has been preferred against the order of the Additional Chief Judicial Magistrate No. 1, Alwar, whereby the respondent-husband has been convicted and sentenced for offence under Sections 323, 341 and 325 of the IPC, which are all compoundable, the concerned court shall, on production of a copy of this judgment, accordingly pass an order compounding the offences in terms of the compromise - The impugned judgment and decree of the Family Court, Alwar, is set aside. The marriage between appellant-wife and respondent-husband is therefore dissolved by mutual consent with immediate effect in terms of the settlement, referred above, entered into between them. The conditions of settlement, referred above, shall form part of this judgment. Decree of divorce be prepared accordingly - This also disposes of stay application and any other pending application.
Result : Dispose.
JUDGMENT
1. Both these appeals arise out of common judgment and decree dated 17.07.2017, hence they were heard and are being decided by this common judgment.
2. Appellant-wife in Appeal No. 4765 challenged the judgment dated 17.07.2017 of the Family Court, Alwar, whereby the petition filed by her under Sections 13 and 27 of the Hindu Marriage Act, 1955, has been dismissed. In appeal No. 4809/2017, she challenged the judgment dated 17.07.2017 whereby the petition under Section 9 of the Hindu Marriage Act filed by respondent-husband for restitution of conjugal rights has been allowed.
3. These have appeals remained pending before this Court for last more than two years. Both the parties jointly filed an application with the prayer that the proceedings in the present cases may be converted into one under Section 13-B of the Hindu Marriage Act, 1955. Since they have been living separately for last seven years, the waiting period of one year of the first motion referable to Section 13B(1) of the Hindu Marriage Act, 1955 stands completed and prayer is made that the second motion of six months under Section 13B(2) may be waived in the facts of the present case. The contents of the joint application are as follows:-
"The Humble appellant and respondent most respectfully beg to submit jointly as under:-
1. The present misc. Appeal u/s. 19 of the Hindu Marriage Act, 1955, has been filed by appellant wife against the judgment dated 17-07-2017 passed by The Family Court, Alwar in divorce petition No. 818/2013, whereby the court below has dismissed the petition for divorce u/s. 13 filed by appellant.
2. The marriage between appellant wife and respondent husband was solemnized on 13.02.2011 as per Hindu rituals and customs at Alwar. But after some time of marriage the appellant and respondent are having difference between them.
3. That due to differences and disputes between appellant wife and respondent husband various FIRs and cases were filed by both the parties and their family members against each other.
4. That the cases filed from the side of appellant wife and his family members are mentioned as below:-
S. No. Case No./FIR No. Name of the Court Title of case Next date in the matter
1. 23/85/2012 u/s. 498(A), 406 IPC, alongwith complaint case No. 23/520/2015 (FIR No. 22/2012, lodged by Girraj Prasad Gupta) AMJM No. 4, ALWAR
State of Raj Vs. Pankaj Gupta & Ors. 17.10.2 019
2. FIR No. 1292/2012 u/s. 323, 341 & 251 IPC, (criminal case No. 150/2016) Decided by ACJM No. 1 Alwar vide judgment dated 04.05.201 9 State of Rajasthan Vs. Pankaj & Anth. Decided
3. 23/31/2019 u/s. 341, 379 IPC (FIR No. 161/2013) AMJM No. 4, Alwar Girraj Prasad Gupta Vs. Pankaj Gupta 15.10.2 019
4. 1/63/2019 u/s. 18-23 of the Domestic Violence Act AMJM No. 4, Alwar Jyoti Gupta Vs. Pankaj Gupta 11.11.2 019
5. That some case were also filed by the side of respondent husband and his family members against appellant wife. The details of cases filed by husband and his family members are mentioned as below:-
S. No. Case No. Name of Court Title of Case Next Date
1. 225/2012 & 1/09 under Domestic Violence Act MJM No. 1, Alwar Anjana Vs. Jyoti 07.11.2 019
2. Criminal Revision No. 226/2018 (FIR No. 377/2012 u/s. 379, 405, 406 IPC ADJ No. 2 Pankaj Vs. State 15.11.2 019
3. Criminal Appeal No. 134/2019 District & Session Judge, Alwar Pankaj & Anth. Vs. State of Rajasthan 14.10.2 019
6. That now after a settlement both the parties are ready to dissolve their marriage with consent on following terms and conditions:
I. That all the FIRs along with cases will be withdrawn by the respective parties and their family members who have lodged the cases and FIRs against each other and their family members or get it quashed by filing appropriate petition/application before any forum or court and will be closed.
II. That no demand of any kind, be it monetary or likewise or any other, shall be made by either appellant or respondent or their family members, either in present or in future. The appellant wife sh
