CM No.8274-CII in/and FAO No.M-186 of 2011 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M.No.8274-CII of 2013 in/and FAO No.M-186 of 2011 (O & M) Date of decision: 20.09.2013 Narinder Pal Singh ....Petitioner No.1 and Neetu .....Petitioner No.2 CORAM : HON’BLE Mr.JUSTICE S.S.SARON HON’BLE Mr.JUSTICE S.P.BANGARH Present: Mr.Rajeev Joshi, Advocate for petitioner No.1 with petitioner No.1 in person.
Mr.S.S.Majithia, Advocate for petitioner No.2 with Petitioner No.2 in person.
S.S.SARON, J.
The marriage between the petitioners was solemnized according to Sikh Rites and Cermonies at Jalandhar on 21.11.2007.
After marriage they cohabited as husband and wife.
They had no child from their marriage.
During marriage matrimonial dispute arose between the petitioners and Narinder Pal Singh (petitioner No.1) on 18.05.2009 filed a petition against his wife Neetu (petitioner No.2) seeking dissolution of the marriage between the parties on the ground of cruelty.
The learned Additional District Judge, Jalandhar after considering the evidence and material on record allowed the petition for divorce filed by Narinder Pal Singh (petitioner No.1) vide Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CM No.8274-CII in/and FAO No.M-186 of 2011 (O & M) -2- judgment and decree dated 27.05.2011 and dissolved the marriage between the parties by a decree of divorce.
Neetu (petitioner No.2) aggrieved against the said judgment and decree filed the present appeal (FAO No.M-186 of 2011).During the pendency of the appeal, the parties entered into a settlement and decided to part ways amicably.
CM No.5981-CII of 2013 was initially filed by the appellant seeking withdrawal of the appeal.
However, deliberations were carried out and the parties agreed to file a joint petition for divorce in terms of Section 13-B of the Hindu Marriage Act, 1955 ('Act' – for short) for dissolving their marriage by a decree of divorce by mutual consent.
Accordingly a joint petition was filed in Court on 18.03.2013 which was taken on record and was ordered to be numbered by the Registry.
The joint petition for divorce has been numbered as CM No.8274-CII of 2013.
It was ordered that the said joint petition that had been filed be treated as a petition filed on 18.03.2013, that is, the date it was filed.
This was so ordered as the parties had been living together till April, 2009 and the petition for divorce was initially filed by Narinder Pal Singh (petitioner No.1) on 18.05.2009.
Therefore, in case the petition was amended and taken into account from the date of institution of the original petition, the statutory period of one year for the parties to the petition to be living separately before filing the joint petition for divorce would not have lapsed.
The parties have been living separately from April 2009 and Amit Kaundal till the filing of the initial petition on 18.05.2009, a period of one year 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CM No.8274-CII in/and FAO No.M-186 of 2011 (O & M) -3- had not lapsed, which is one of the requirements for the filing of a joint petition for divorce by mutual consent.
On the statements of the learned counsel for the parties, the conversion of the original petition that was filed to that of a petition under Section 13-B of the Act was treated to be instituted on the date it was filed in this Court i.e.on 18.03.2013.
In fact the Hon'ble Supreme Court in Sampath Kumar v.
Ayyakannu and another, AIR2002SC3369 has observed as follows:- “An amendment once incorporated relates back to the date of the suit.
However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropraite cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed (See observation in Siddalingamma and another v.
Mamtha Shenoy, (2001) 8 SCC561”.
In respect of matrimonial disputes it is quite common that the parties after contest at the initial trial Court stage, enter into a settlement at the appellate stage and file a joint petition Amit Kaundal seeking divorce by mutual consent.
Such a joint petition seeking 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CM No.8274-CII in/and FAO No.M-186 of 2011 (O & M) -4- divorce by mutual consent at the appellate stage by amending/ converting the original petition that had been filed is to be taken to have been instituted on the date it is filed.
In case this is not done, at times, the period of one year required for the parties to be living separately before filing a joint petition in terms of Section 13-B of the Act does not lapse.
In such circumstances one of the requirements for filing the joint petition seeking divorce by mutual consent remains incomplete.
Accordingly, the joint petition was taken to have been filed on 18.03.2013 by which date the parties had admittedly been living separately for a period of one year or more so as to entitle them to file a joint peition under Section 13-B of the Act.
The statements of the parties at the fiRs.motion were recorded on 18.03.2013.
Both the parties inter alia stated that they want divorce and they had entered into a compromise.
The original compromise Ex.C1 was tendered in evidence by both the parties.
Each page of the compromise was signed by them.
It was inter alia agreed in terms of the compromise that there was no hope of reconciliation in the near future and taking into consideration the young age of both the parties and hope of fresh resettlement, respectables and common relatives from both the parties had intervened and prevailed upon them to put to an end to the ongoing litigation and live peacefully without intervention.
Narinder Pal Singh (petitioner No.1) had undertaken to pay to Neetu (petitioner No.2) and minor son of the parties namely Samrat a lumpsum amount of Amit Kaundal Rs.5 lacs each for their past, present and future maintenance.
Neetu 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CM No.8274-CII in/and FAO No.M-186 of 2011 (O & M) -5- (petitioner No.2) had undertaken to withdraw her petition under Section 125 of the Code of Criminal Procedure and also to withdraw her complaint under Section 12 of the Protection of Women from Domestic Violence Act and also CMM No.97 of 2011 for grant of maintenance pendente lite.
Both the parties had further agreed to receive their belongings from each other and on receipt of their belongings and on receipt of the lumpsum maintenance as detailed above, none of the parties it was agreed shall file any civil, criminal or any other proceedings qua their belongings, maintenance and any other right or claim qua their marriage in any manner in any Court in future against each other; besides, they would not interfere in the personal life of each other and both the parties would be at liberty to live their personal life in any manner they like.
After recording the statements of the parties at the fiRs.motion, the case was adjourned for today for recording the statements of the parties at the second motion.
Both the parties have appeared and their statements on oath have been recorded.
They both have stated and reiterated that they want divorce.
Narinder Pal Singh (petitioner No.1) has tendered Rs.10 lacs by way of demand drafts which have been received by Neetu (petitioner No.2).It has been agreed that out of the sum of Rs.10 lacs that has been received by Neetu (petitioner No.2).an amount of Rs.5 lacs would be deposited in a fixed deposit receipt in a bank in the name of the minor Samrat and she would be entitled to the interest of the Amit Kaundal same.
The amount shall remain deposited till the minor Samrat 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CM No.8274-CII in/and FAO No.M-186 of 2011 (O & M) -6- attains the age of 18 yeaRs.Some belongings like two gold rings, one pair of tops and one wrist watch were also handed over by Narinder Pal Singh (petitioner No.1) to Neetu (Petitioner No.2).besides, Rs.10,000/- as maintenance pendente lite for the month of September was also handed over to her, which she has received.
Narinder Pal Singh (petitioner No.1) submitted that some articles of his like two gold rings, one pair of tops and one wrist watch are with Neetu (petitioner No.2) which he gives up and does not make any claim for the same.
He has also undertaken that some articles like almirah, bed, one 'petti' (box) and one washing machine which are with him, he would send the same to Neetu (petitioner No.2) within 15 days.
The minor son of the parties namely Samrat is to remain in the custody of Neetu.
The parties now have no claim of any kind against each other.
Both of them have stated that their marriage be dissolved by a decree of divorce.
We are satisfied that the parties have bonafidely agreed to dissolve their marriage.
It is submitted by learned counsel for the parties that the appeal (FAO No.M-186 of 2011) be allowed and judgment and decree of the trial Court be set aside as divorce had been granted in the petition against which the said appeal had been filed but now divorce be granted in the joint petition (CM No.8274-CII of 2013) filed by the parties.
We are in agreement with the said contentions of the learned counsel for the parties as the parties have mutually decided to part ways amicably and dissolve Amit Kaundal their marriage by a decree of divorce by way of mutual consent.
2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CM No.8274-CII in/and FAO No.M-186 of 2011 (O & M) -7- Accordingly, the appeal (FAO No.M-186 of 2011) is allowed and the judgment and decree dated 27.05.2011 passed by the learned Additional District Judge, Jalandhar is set aside and the petition for divorce filed by Narinder Pal Singh (petitioner No.1) at Jalandhar is dismissed.
CMM No.97 of 2011 for grant of maintenance pendente lite with the appeal being disposed of no longer survives.
However, the joint petition (CM No.8274-CII of 2013) for divorce filed by the parties in this Court on 18.03.2013 is allowed and the marriage between the parties is dissolved by a decree of divorce by mutual consent in terms of Section 13-B of the Act.
The parties shall remain bound by the compromise Ex.C1.
There shall be no order as to costs.
Decree-sheet be prepared.
(S.S.SARON) JUDGE (S.P.BANGARH) 20.09.2013 JUDGE A.Kaundal Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh