A.K. Goel, J.
1. This appeal has arisen out of the judgment passed by Smt. Kiran Aggarwal, District Judge (Forests), Shimla in HMA Case No. 9-S/3 of 1990 dated 28.6.1993 whereby the petition for dissolution of marriage by a decree of divorce filed under Section 13(l)(i-a) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') by the appellant (hereinafter referred to as the 'husband') against the respondent (hereinafter referred to as the 'wife') on the ground other having treated the husband with cruelty was dismissed. The matter came up before this Court on a number of occasions and attempts were made from time to time for re-conciliation as a duty is enjoined upon the Court under Section 23 of the Act, but unfortunately for some reason or the other the appellant was not in a position to attend that Court although it was assured by his learned Counsel, who appeared for him from time to time that despite his intention to attend that Court for reasons beyond his control, he had not been able to make it. The matter was finally heard on 9.8.1996 when the judgment was reserved.
2. Parties have got the daughter from this wedlock named Simrat S. Singh, who is at present aged about eight years.
3. At all stages repeated efforts were made and when the arguments had been concluded, the parties were again asked to see sense and sort out the matter so that they either live together or part company if not for their own sake, at least for the welfare as well as well being of their minor daughter. Thereafter the matter remained pending and finally on 2.9.1996, applications were filed by the appellant being CMP No. 536 (under Order 6, Rule 17 CPC) for amendment of the divorce petition with a prayer to allow the same and convert/treat the present appeal as a petition for divorce by mutual consent under Section 13-B of the Act, CMP No. 537 of 1996 under Section 13-B(1; of the Act wherein appellant has been arrayed as petitioner No. 1 and respondent has been arrayed as petitioner No. 2, CMP No. 538 of 1996 under Section 13-B(2) of the Act accompanied by affidavit of the respondent-wife, her mother-in-law, wherein she had agreed to withdraw the suit filed by her against the wife as well as her father, CMP No. 539 of 1996 is an application for dispensing with the period of six months under Section 13-B of the Act for waiving the period of six months. This application is also accompanied by affidavits of both the respondents and CMP No. 540 of 1996 is an application under Order 23, Rule 3 read with Section 151, CPC for compromise of proceedings duly accompanied by the affidavits of the parties.
4. Another application under Order 32, Rule 6 CPC has been filed by the wife. CMP No. 536 to 540 of 1996.
These applications are being dealt with and the husband is permitted to carry out the proposed amendments and accordingly petition under Section 13-B(1) of the Act is ordered to be taken on record in place of the petition as originally filed before the Trial Court by the husband. Now, for all intents and purposes, the proceedings as originally initiated by the husband shall be treated as being under Section 13-B(1) of the Act. Period of six months as envisaged under Section 13-B(2) of the Act is waived and the petition under Section 13-B(1) shall be taken on record. Similarly, in the facts and circumstances of the case, this Court permits the parties to compromise the proceedings in the background and facts as enumerated hereinafter in this order.
5. Why the necessity of converting the original petition under Section 13 of the Act for dissolution of the marriage on the ground of cruelty into a petition for divorce by mutual consent needs to be explained here.
6. Admittedly, parties were married at Shimla in a Gurdwara at Sanjauli on 11.5.1987 as per Sikh rites and ceremonies. Thereafter, they remained together for a period of about eight months only. If a reference is made to the allegations made in the divorce petition and the counter-allegations in the reply, it does not make a very happy reading and understanding of the whole situation. Not only this, the nature of evidence that was brought before the Trial Court and further additional evidence that was sought to be produced by the husband before this Court by way of additional evidence, leads to only one and irresistible conclusion that the marriage between the parties has broken down irretrievably, and it is neither in their interest nor in the interest of the minor daughter, who is residing with the wife. We are further constrained to point out that a lot of dirty linen had been washed by the parties during the course of proceedings in this case. In these circumstances, looking to the totality of the circumstances, we have permitted the proceedings in appeal to be converted into proceedings for divorce by mutual consent.
7. On the basis of the facts and circumstances stated in the petition made vide CMP Nos. 537 and 538 of 1996, it is ordered :
(a) That the marriage between the husband Swatantra Singh and wife Mrs. Neel Kamal Singh is dissolved by a decree of divorce by mutual consent.
(b) That a sum of Rs. four lacs has been paid by means of a bank draft favouring the wife in lieu of her all claims, past, present and future maintenance as well as her Stridhan etc. With the receipt of this amount and as agreed between the parties, she will not claim any other maintenance or claim anything against her husband and /or against his properties wherever these are located.
(c) That the minor daughter of the parties Ms. Simrat Singh has been brought up and is being looked after and maintained by the wife. A further sum of Rs. four lacs has been received by the wife towards her maintenance and education and this amount shall be invested in a fixed deposit receipt for a minimum period of ten years in the name of the minor daughter. Interest accruing thereon shall be payable to the mother of the minor girl, namely, Neel Kamal Singh which she will utilise for the education, upkeep and welfare of the minor. Smt. Neel Kamal Singh has no right to either encash or otherwise to deal with the fixed deposit receipt in any manner whatsoever and after the minor daughter attains majority, she will be free to deal with the same. In case of any emergency, Smt. Neel Kamal Singh would be entitled to approach the Court for withdrawal out of this amount;
(d) That the custody of the minor daughter of the parties Simrat S. Singh will remain with her mother, Neel Kamal Singh. However, her father, Shri Swatantra Singh shall have right of visitation after due and timely intimation to Neel Kamal Singh in writing well in advance and while doing so, he will ensure that her educational curriculum is not disturbed. In case the minor daughter wants to accompany her father of her free will and volition, of course, without causing any emotional or other disturbance otherwise, wife will allow father to take the minor daughter with him, but it is made clear that in no case the father will either exert any force or compel the minor daughter for the same. Going out of the minor with her father and /or being taken for holidays by the father to stay with him would purely depend upon the will and wish of the minor daughter and the same shall be conclusive for all intents and purposes;
(e) That it is further understood between the parties that all pending litigation between them or at 'their instance before any Court, police authority or other Executive authority anywhere pending shall stand concluded and on the production of a copy of this judgment, all such cases and proceedings shall stand closed forthwith without anything being done by either husband or wife;
(f) That it is further agreed and undertaken by the mother of the respondent, Smt. Nirmal Gajendra Singh that Civil Suit No. 2862 of 1990, titled as Smt. Nirmal Gajendra Singh v. Smt. Neel Kamal Singh and Anr., in the Court at Delhi shall not be revived in case it is dismissed in default. If it is still pending, the same would be withdrawn. She has sworn an. affidavit to this effect which is attached with CMP No. 528 of 1996.
(g) That all the allegations made in the original petition for divorce filed by the husband Swatantra Singh and in reply thereto by Neel Kamal Singh shall stand withdrawn for all intents and purposes and will be treated as non-est. No party shall be entitled to take any benefit thereof. Similarly, Shri Swatantra Singh does not press GMP No. 191 of 1996 under 0rder 41, Rules 27 and 28 CPC and Order 18, Rule 17-ACPC filed in this case, and he further unconditionally withdraws all the allegations made therein against Smt. Neel Kamal Singh and he shall not press those into service for any purposes whatsoever henceforth against Neel Kamal Singh.
CMP No. 540 of 1996.
8. This application is allowed. The respondent-wife is allowed to accept the bank draft of Rs. four lacs as aforesaid for being used for the benefit of the minor daughter of the parties. However, it is made clear that the receipt of this amount is no way shall affect her legal rights available to her being me daughter of born the parties in their respective estates/properties etc.
9. CMP Nos. 538 and 539 of 1996 shall form part of me decree and would always be read as an integral part thereof.