ORDER

Date : 09/05/2022

Suman Shyam, J

Heard Mr. P. Bora, learned counsel for the appellant (husband). We have also heard Ms. M.

Buzarbruah, learned counsel for the respondent (wife).

This matrimonial appeal arises out of judgement dated 05/12/2017 passed by the learned Principal Judge, Family Court No.1, Kamrup at Guwahati in FC(C) case No. 458/2012 instituted by the appellant as petitioner, whereby the learned Family Court had dismissed the petition by holding that the appellant/petitioner is not entitled to get a decree of divorce dissolving his marriage with the respondent.

During the pendency of the Mat Appeal, both the parties expressed willingness to explore the possibilities of an amicable settlement of the dispute with the help of Mediation. Accordingly, the matter was referred to the Gauhati High Court Mediation Centre. During the process of mediation, both the parties could arrive at a consensus for obtaining a decree of divorce on some mutually agreed terms and conditions. Accordingly, a Memorandum of Settlement dated 30/11/2021 was signed by both the parties. Sub-clauses (IV) and (V) of Clause -6 of the agreement dated 30/11/2021 respectively deals with the manner in which, a residential flat jointly owned by the appellant and the respondent, situated at Maniknagar, Guwahati, was to be disposed of and the sale proceeds to be distributed in equal proportion between their two daughters. Mr. Bora, learned counsel for the appellant submits that in terms of clause 6(IV) of the agreement, the flat has already been disposed of and after deducting the amount of TDS, a sum of Rs. 48,19,000/- is presently lying in the bank account of the appellant. However, both the daughters are refusing to accept the amount as a result of which clause 6(V) of the agreement could not be given effect to till date.

Ms. Buzarbaruah, learned counsel for the respondent has also confirmed the fact that both the daughters are not willing to accept their share of the sale proceeds by saying that they do not want to get involved in the matter.

The respondent (wife) as applicant has also filed IA(C) No. 1333/2022, arising out of Mat Appeal No. 6/2018, highlighting the aforesaid fact with a prayer to pass appropriate order in the matter.

We have gone through the application filed in IA(C) No. 1333/2022 as well as other materials available on record and find that both the parties have taken a stand that their daughters are not interested to receive the sale proceeds of the flat. The learned counsel for the respondent (wife) has also submitted that her client does not want any share of the sale proceeds of the flat.

We understand from the submissions of learned counsel for both the sides that not only the parties involved in this proceeding but even their daughters are well established medical practitioners and, therefore, they are not in need of the aforesaid amount. Since, both the parties to the Memorandum of Settlement dated 30/11/2021 have taken the same stand to the effect that their daughters have declined the offer to split the sale proceeds of the flat between them, the position must be treated as factually correct. If that be so, non-compliance of sub-clause V of Clause 6 of the agreement dated 30/11/2021, in our opinion, need not detain the process of dissolution of marriage between the parties since all other mutually agreed terms and conditions of the agreement, according to the learned counsel for the parties, have either been implemented or are in the process of being implemented.

As such, on the request of learned counsel for both the sides, we hereby clarify that sub-clause V of Clause 6 in the settlement agreement dated 30/11/2021 shall stand modified and/or obliterated in the light of the observations made herein above. Consequently, it would no longer be obligatory for the appellant (husband) to transfer the money to the accounts of the daughters or to the respondent so as to obtain a decree of divorce.

As such, the decree of divorce dissolving