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HIMACHAL PRADESH HIGH COURT
Sanjay Karol, J.
Kummo Devi —Petitioner
versus
Jaipal —Respondent
C.M.P. No. 907 of 2008
Decided on 8.1.2010
Held: In the instant case, the statements of the parties are evidently clear. They intended to dissolve their marriage by mutual consent under Section 13B of the Act. Also the order passed by the Court is also evidently clear. No written application was on record on the date when statements of the parties were recorded. It may be a mere formality but the Court had directed the parties to place on record the terms of the compromise by way of a separate application. No doubt on the basis of the statements of the parties the Court could have proceeded further, but it is also a fact that on 20.4.2009 no decree for divorce had been passed under the provisions of Section 13B of the Act.
Hence, it would be permissible for the applicant wife to withdraw her consent for dissolution of her marriage by mutual consent. The agreed terms of settlement were for dissolution of marriage by consent. It was a composite package. (Paras 17 & 18)
Since the parties did not file application in terms of order dated 20.04.2009 passed by this Court and no decree for divorce was passed, appellant wife is allowed to withdraw her consent. Consequently, consent of both the parties recorded on 20.4 .2009 is treated to be withdrawn and not binding on them. (Para 22)
Result: Application allowed.
Sanjay Karol, J.—In terms of the present application, the appellant wife is seeking permission to withdraw her consent recorded on 20.4.2009 with a further prayer that the matter be heard on merits.
2. The application is opposed by the respondent husband.
3. The marriage between the parties was solemnized as per Hindu customary rites on 8.12.1980. The parties could not pull along. On 17.1.2001 respondent husband filed a petition for dissolution of marriage by a decree of divorce under Section 13 (l)(ia & ib) of Hindu Marriage Act, 1955 (hereinafter referred to as the Act). The petition was opposed by the wife. In terms of judgment and decree dated 16.2.2004, the District Judge allowed the petition and dissolved the marriage on the ground of cruelty.
4. The same was assailed by the wife by filing the instant appeal. The appeal was admitted on 28.4.2004 and came up for hearing on 24.2.2009 when learned counsel for the parties prayed for an adjournment to enable the parties to work out an out of court settlement. The parties also appeared in person before the Court on 16.3.2009. Since the parties were still in the process of resolving their dispute amicably, the matter was adjourned for 20.4.2009. On 20.4.2009 the parties arrived at an amicable settlement and requested for recording of their statements. Accordingly, their statements were recorded and order passed to the following effect:
“The parties are present today. With the efforts of the learned counsel, they have arrived at a mutual settlement. They pray that their statements be recorded and their marriage be dissolved by a decree of mutual consent and the terms arrived at inter se between themselves be also recorded. Let statement of parties be recorded.
Statement of parties have been recorded. Let the terms of compromise be placed on record by way of a separate application supported by affidavits.
List the matter on 18.5.2009.”
“Statement of Shri Jai Pal, Aged 57 years, son of Shri Dulo Ram, Resident of Village and PO Rihlu, Tehsil Shahpur, District Kangra, H.P. respondent.
On SA
20.4.2009
I have amicably resolved all my disputes with my wife Smt. Kummo Devi appellant.
We have agreed to dissolve our marriage by mutual consent. I pray that a decree for divorce by mutual consent under Section 13B of the Hindu Marriage Act may be passed. I withdraw all the allegations made in the petition initially filed under Section 13(1)(ia)(ib) of the Hindu Marriage Act. In lieu of the appellant’s right of maintenance, alimony and right in my property, I have agreed to pay a lump sum amount of Rs.7,50,000 to the appellant. The same shall be deposited within three months from today in this Court. She shall be free to withdraw the same. I shall withdraw all cases pending inter se between the parties. I shall pay the maintenance as ordered by various Courts only upto today. I have heard the statement and I will agree with the same.”
“Statement of Smt. Kammo Devi, daughter of Shri Jobhi Ram, Aged 48 years, Resident of Village and PO Rihlu, Tehsil Shahpur, District Kangra, H.P. appellant.
On SA
20.4.2009
I have heard the statement of Shri Jai Pal, my husband. We have arrived at a mutual settlement. I pray that the marriage be dissolved under Section 13B of the Hindu Marriage Act. In lieu of my claims towards maintenance, alimony and right in my husband’s property I have agreed to receive a lump sum amount of Rs.7,50,000. I have also agreed to vacate the possession of the house in Village Rihlu, Tehsil Shahpur, District Kangra, owned by my husband’s brother Shri Jai Chand, on or before 31.12.2009. I shall hand over the vacant possession of the residential house to Shri Jai Pal, respondent or Shri Jai Chand. My children born out of the wedlock continue to remain with me and they shall also vacate the aforesaid residential premises before 31.12.2009. I undertake to withdraw all cases pending inter se between the parties. Henceforth I shall not claim any maintenance as ord
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