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2002 Supreme(UK) 44
2002 (2) UC 2.1
UTTARANCHAL HIGH COURT
A.A. Desai, C.J. AND I Hussain J.
Raj Vinod
vs
Smt. Durga Devi
First Appeal No. 05 of 2001
Decided On: 24/4/2002
Mutual consent and substantial period of separation can be grounds for granting a decree of divorce.
Headnote:
Divorce - Mutual Consent - The court modified the judgment and passed an order for the dissolution of marriage by decree of divorce with mutual consent, along with the settlement of maintenance payable to the wife.
Fact of the Case:
Parties were married but could not stay together. Husband filed for divorce, and wife demanded restitution of conjugal rights. After a substantial period of separation, they reached a consensus for a joint divorce petition under Section 13B of the Hindu Marriage Act.
Finding of the Court:
The court modified the previous judgment and passed an order for the dissolution of marriage by decree of divorce with mutual consent, along with the settlement of maintenance payable to the wife.
Issues: Dispute over divorce and restitution of conjugal rights.
Ratio Decidendi: The court considered the mutual consent of the parties and the substantial period of separation as grounds for granting the decree of divorce.
Final Decision: The appeal was disposed of accordingly, and the marriage was dissolved by decree of divorce with mutual consent.
A.A. Desai, C.J. and Irshad Hussain, J.
1. Heard Sri S.N. Babulkar, learned counsel for the appellant and Sri R. Dobhal, learned counsel for the respondent. Parties are also present in person.
2. On 11.6.1985, parties Raj Vinod and Smt. Durga Devi were married. However, they could not stay together. Husband Raj Vinod, therefore, filed a petition under Section 13 of the Hindu Marriage Act for divorce. In the same proceedings, wife Smt. Durga Devi by way of counter-claim demanded restitution of conjugal rights. Matters were heard together. The Judge, Family Court, Pauri Garhwal, by the judgment dated 7.2.2001 dismissed the claim of the husband for divorce. However, he allowed the claim for restitution of conjugal rights of the wife Smt. Durga Devi. Hence, the husband Raj Vinod presented the instant first appeal.
3. During the pendency, we held conciliation between the parties. Ultimately, they reached to a consensus that they cannot happily live together as husband and wife since their separation was for a substantial period of sixteen years. As a result of the consensus thus arrived at between them, they have decided to present joint divorce petition purported to be under Section 13B of the Hindu Marriage Act. Accordingly, petition has been filed.
4. The parties Raj Vinod and Smt. Durga Devi have verified their joint divorce petition/application filed in this Court. They have agreed to take divorce by mutual consent. Husband--Raj Vinod agreed to pay Rs. 2,25,000 (Rupees two lacs and twenty five thousand only) by way of full and final settlement of the maintenance payable towards wife, which she accepts.
5. Both the parties agree that out of their wedlock, there is no issue. As such, there is no question of custody or guardianship.
6. In view of this, judgment and decree dated 7.2.2001 is modified and order is passed in terms of the compromise as indicated above that the marriage be dissolved by decree of divorce with mutual consent. The amount of Rs. 2,25,000 (Rupees two lacs and twenty five thousand only) brought by the husband Raj Vinod by way of bank draft shall be deposited in S.B.I., Rudra Prayag for a period of five years. The said draft for the sum of Rs. 2,25,000 is handed over to Smt. Durga Devi in Court. Smt. Durga Devi shall be entitled to withdraw the interest thereon. The principal amount shall, however, remain deposited by way of fixed deposit for a minimum period of five years.
7. The appeal is disposed of accordingly.
