Allowed

Rushyasrungu Ashok v. Smt. Rushyasrungu Roja

Telangana HC12 Dec 2014CRP/3244/2014

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition, setting aside the Family Court order that refused to record a mutual consent divorce. The Court directed the Family Court to dispose of pending matrimonial petitions based on the parties' compromise, allow conversion to Section 13-B proceedings, and waive the six-month waiting period as the spouses lived separately for over a year. Relief was grant

What did the court decide?

Impugned order set aside; Family Court directed to record compromise, convert petition to Section 13-B, waive six-month waiting period, and pass a decree of divorce by mutual consent.

Rushyasrungu Ashok Vs Smt. Rushyasrungu Roja — Matrimonial and Divorce | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

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Civil Revision Petition No.3244 of 2014

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ORDER:

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This is a civil revision petition under Article 227 of the Constitution of India by the petitioner/husband assailing the orders dated 21.08.2014 of the learned Judge, Family Court-cum-III Additional District Judge, Srikakulam passed in an unregistered IA of 2014 in FCMOP.No.27 of 2012.

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2. I have heard the submissions of the learned counsel for both the sides. I have perused the material record.

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3. At the outset, it is to be mentioned that the respondent/wife is also conceding for granting the relief prayed for in this revision petition to the husband keeping in view the mutual interest of both the parties who had sought for the reliefs of recording of the compromise and the disposal of the matrimonial cases in FCMOP.No.27 of 2012 and FC(MC)OP.No.26 of 2011 pending before the Family Court.

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4. Now the points for consideration are –

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(i) whether the parties to this lis have made out valid and sufficient grounds for permitting them to enter into a compromise and for granting decrees in the OP.No.27 of 2012 and OP.No.26 of 2011 in terms of the compromise entered into voluntarily between the parties?

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(ii) And, if so, whether the impugned order refusing to entertain and number the application filed for disposal of the above mentioned OPs in terms of the compromise is liable to be set aside?

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(ii) What shall be the appropriate order to be made in this revision?

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5. POINTS:

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5. (a) The facts necessary for consideration, in brief, are as follows:

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- “The petitioner and the respondent are husband and wife. In view of the disputes and estrangement between the spouses, the wife had filed the OP.26 of 2011 on the file of the learned Judge, Family Court, Srikakulam against the husband requesting to award maintenance. The wife had also filed the other OP.No.27 of 2011 under Section 9 of the Hindu Marriage Act, 1955 (‘the Act’ for short) for restitution of conjugal rights. The husband had filed OP.No.27 of 2012 under Section 13(1)(ia)(ib) of the Act for granting decree of divorce by dissolution of the marriage between the parties which was solemnized on 15.02.1990 and for other reliefs. The said OP is also pending on the file of the very same Family Court. During the pendency of the three petitions, as per the submissions made before this Court, both the parties had voluntarily entered into a compromise and had reduced the terms and conditions of the compromise into writing. Some of the relevant terms of the compromise are as follows: -

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‘It is submitted that at intervention of elders of the both parties to above proceeding are willing to settle the matter with the following terms and conditions.

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a) that without prejudice to the rights and contentions of the respondent in OP.27/2012 and without admitting the allegations against each other they are agreed to dissolve the marriage between them which was solemnized on 15.02.1990 at Srikakulam by way of decree of divorce in OP.27/2012 pending on the file of this Honourable family judge at Srikakulam.

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b) That the petitioner in OP.26/2011 agreed to withdraw by way not press OP.27/2011 against her Husband/respondent by receiving a sum of Rs.2,80,000/- (Rupees Two Lakh Eighty thousand only) by of Demand draft bearing No.161263 dt.23.07.2014 drawn on Andhra Bank, Akayyapalem Branch, Visakhapatnam in OP.26/2011 towards permanent alimony to the respondent in OP.27/2012 at the time of granting divorce to them.

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c) That both parties are agreed to will have their own independent lives without interference to each other by way of any Civil or Criminal of adjudication of process in any court of law and they are here by under take to waive all rights, past, present and offered to proceed against each other or their family members.

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d) The parties hereto shall not have any claims in future either against them personally or to their properties.

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e) That the both parties would to live and lead their independent life with full of freedom without any connection and each other hitherto.’ [Reproduced verbatim]

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Along with the memorandum of compromise with the above terms, both the parties have filed the unregistered IA.No. of 2014 in FCMOP.27 of 2012 before the Family Court under Order XXIII Rule 3 of the Code read with Section Rule 10 (A) (B) and 11 of the Family Courts Act requesting to decree the above OP.No.27 of 2012 and OP.No.26 of 2011 without costs in terms of the compromise and pass such other orders as the court deemed fit. The learned counsel for both the parties and the parties had also represented before the Family Court that the above compromise petition be numbered and necessary orders may be passed as both the parties had entered into compromise and settled the matters once and for all. However, the learned Judge, Family Court, Srikakulam had refused to entertain and proceed with the said petition holding that the term of compromise in regard to permanent alimony payable by the husband to the wife in full and final settlement is a contract which is in violation of Section 25 of the Contract Act and that Section 13-B of the Act specifically deals with granting of divorce by mutual consent and that therefore, the compromise petition filed under Order XXIII Rule 3 of the Code for recording the compromise is not maintainable and the parties are not entitled to request the Court to number or register the said application and record the compromise.”

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5. (b) At the time of hearing, both the learned counsel had submitted that in case the wife is not satisfied with the permanent alimony, the wife can always approach the court with a further enhanced claim for maintenance, if the facts warrant and the law permits and this is not the stage to consider whether the permanent alimony would be sufficient for the life long sustenance of the wife as both the parties had voluntarily agreed that the said amount of Rs.2,80,000/- shall be payable towards permanent alimony at the time of granting of divorce. The learned counsel for both the parties had further submitted that the marriage between the spouses was performed in the year 1990 and that the cases (OPs) were filed in the years 2011 and 2012 and that the respite period of six months which is generally granted to the parties to reconsider their decision to dissolve their marriage by mutual consent is not a bar since the parties are living separately for more than six

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months and as the petition for granting of divorce has remained on the file of the Court for more than the statutory period. It is also urged that the parties required no respite period to reconsider their decision to dissolve a broken marriage and that the parties have withdrawn the various allegations that are made against one another upon seeing reason and that the parties have hence, come forward before the Family Court for dissolution of marriage by a decree of divorce by entering into a compromise and that therefore, the Family Court ought to have entertained and registered the compromise petition and ought to have disposed of the OPs in terms of the compromise in stead of refusing to entertain and register the application. Thus, both the parties having settled and compromised the matter amicably out of court and having reduced the terms of compromise into writing approached the Family Court with a request to dispose of the pending OPs in terms of the compromise by dissolving the marriage by a decree of divorce so that the parties can lead their respective future lives with full freedom and peace of mind. However, the learned Judge of the Family Court refused to record compromise in the matters pending before him and had not even entertained the petition and refused to number and proceed with the hearing of the petition.

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6. From the facts of the case, it is evident that the husband had filed OP.No.27 of 2012 on the file of Family Court for granting decree of divorce by dissolution of the marriage between the parties which was solemnized on 15.02.1990. In the said petition, the husband had made certain allegations against the wife in support of the relief claimed in the petition. The wife had filed a counter with certain counter allegations. The spouses have settled all the matters and had approached the Court below to dispose of the cases viz., OP.No.26 of 2011 and OP.No.27 of 2012 and also requested that a decree for dissolution of marriage may be granted in OP.No.27 of 2012 in terms of the compromise.

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7. Thus, it is evident that the parties are requesting the Family Court to convert the OP.27 of 2012, which is filed under Section 13(1)(ia)(ib) of the

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Act for a decree for dissolution of marriage between the spouses, into an application under Section 13-B of the Act and are seeking divorce by mutual consent. They are inter alia seeking disposal of the other pending cases also in terms of the compromise. Now, the question is – ‘whether or not it is permissible to allow the conversion of the application filed for grant of a decree of divorce by dissolving the marriage into an application for divorce by mutual consent under Section 13-B of the Act?’ As already noted, the marriage was solemnized on 15.02.1990. The OPs before the Family Court including the petition for divorce were filed in the years 2011 and 2012 i.e., long after the marriage and long after the estrangement between the spouses. Even after filing of the petitions and during the pendency of the petitions, the parties are living separately for over one year. Subsequently, there is a settlement and a compromise between the parties upon seeing reason. Therefore, they have come forward before the Family Court for dissolution of the marriage through a decree of divorce by mutual consent i.e., by entering into a compromise and after withdrawing the allegations and the counter allegation against each other. The circumstances of the case clearly show that there are no marital ties in effect between the parties. Though, the petition for divorce was originally filed under Section 13(1)(ia)(ib) of the Act, the parties are now seeking divorce by mutual consent by virtue of the compromise. In the well considered view of this court, the parties can be permitted to settle their dispute and seek divorce by mutual consent and the court below can grant to them a decree for divorce by mutual consent without the parties waiting for a further period of six months as they have been living separately for a period of one year or more since the filing of the petitions before the Family Court. The view of this court finds support from the ratio in

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the decision in Davinder Singh Narula v. Meenakshi Nangia^[1] . The facts of the cited case show that the marriage between the parties in that case was solemnized on 26.03.2011 and that within three months of the marriage one of the parties had filed a petition under Section 12 of the Act for a decree of nullity of marriage and that thereafter they had lived separately for more than one year and that there are no marital ties in effect between them and that in

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the above circumstances and during the pendency of the proceedings under Section 12 of the Act, the parties had agreed to mediation and agreed to dissolve their marriage by filing a petition under Section 13-B of the Act for grant of divorce by mutual consent and in the proceedings before the mediator the parties had agreed to move appropriate petitions under the Act and that accordingly, a report was submitted by the mediator and subsequently the parties had filed a joint petition on 13.04.2012 under Section 13-B of the Act and on that application, the learned Additional District Judge fixed a date for appearance of the parties on 15.10.2012 as the waiting period of six months contemplated under Section 13-B of the Act is required to be completed. In the above stated factual matrix of the case, the Supreme Court allowed the appeal of the parties and converted the pending proceedings under Section 12 of the Act before the Additional District Judge into one under Section 13-B of the Act and had granted a decree of mutual divorce between the parties and directed that the marriage between the parties shall be dissolved by mutual consent. Further in the decision in Rakesh Harsukhbhai Parekh v. The State of Maharashtra and anothe r^[2] the facts and ratio are as follows: - ‘The marriage between the parties was performed on 20.05.2005. They had started living separately since 19.05.2006. The petitioner/husband filed a petition under Section 13 of the Act on the ground of cruelty. After the matter was part-heard, the parties withdrew the allegations against one another and had filed consent terms on 16.12.2009 with regard to granting of divorce, withdrawal of the allegations and the grant of lumpsum alimony to the wife. Thereafter they made a joint application for waiver of six months period for acting upon the consent terms and obtaining divorce under mutual consent under Section 13-B of the Act. Their application was rejected on the ground that the period cannot be waived and that the petition has to be adjourned to six months. While setting aside the order of the court below and while remitting the matter to the family court to pass necessary orders under Section 13-B of the Act on the next date of hearing, the High Court of Bombay had held as follows: -

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‘The parties, who settle their dispute, are not required to be penalised for settling their disputes. They have gone through the process of

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divorce in the Court for more than 6 months when the petition remained pending. They have only modified their views upon settlement of the dispute. Hence such a petition, though for divorce by mutual consent which would be granted to both parties and not for divorce upon the grounds under Section 13 of the Hindu Marriage Act, has lived through 6 months period in the Family Court already. Consequently, that period of 6 months, which the law requires the parties to undergo while the Petition remains pending, is undergone; only the acrimonious allegations are withdrawn so that the divorce can be granted amicably to both rather than to one of the spouses.’

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I have carefully considered the facts and the submissions of the parties. Under Section 9 of the Family Courts Act, a duty is enjoined upon the court to consider the alternative mode of reconciliation between the parties; and reconciliation by way of amicable settlement of the dispute by divorce by mutual consent is arrived at by the parties in the case on hand. Even Section 89 of the Code of Civil Procedure, which applies to the Family Court also enjoins the court with a duty to follow the resolution of the disputes by alternative mode. As also observed in the decision in Rakesh Harsukhbhai Parekh (2 supra), the parties in the present case, after the petition for divorce was filed by the husband, have lived separately for a period of more than six months and having seen reason had come to an understanding and have withdrawn the acrimonious allegations against one another so that divorce can be granted amicably to both of them rather than to one of the spouses. In the case on hand, when the parties have withdrawn the spiteful and discordant allegations after an amicable settlement and are seeking divorce by mutual consent in terms of the compromise and when the parties have been living separately for more than the period of six months, in the well considered view of the court, the Family Court, which is required to function under the reconciliatory mode, shall permit the parties to have the matter settled amicably and shall dispose of the pending petitions in terms of the compromise also by permitting the conversion of the petition filed by the husband for decree of divorce by dissolution of marriage into one for decree of divorce by mutual consent under Section 13-B of the Act.

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8. In the result, the Civil Revision Petition is allowed and the order impugned is set aside and the learned Judge, Family Court, Srikakulam is directed to entertain the petition and dispose of the pending OPs on the file of

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his Court in terms of the compromise, keeping in view the observations in this order.

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As a sequel, miscellaneous petitions pending, if any, in this revision shall stand closed. There shall be no order as to costs.

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________________________ M. SEETHARAMA MURTI, J 12^th December 2014 Vjl [1] AIR 2012 SC 2890 [2] AIR 2011 BOMBAY 34

Rushyasrungu Ashok v. Smt. Rushyasrungu Roja

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Rushyasrungu Ashok v. Smt. Rushyasrungu Roja

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