N S PADMANABHAN Vs. PADMINI

JUDGEMENT

(1.) This is a peculiar case where both husband and wife have been litigating with each other after the relations between them became strained. Both the partics have been litigating for a considerable length of time, levelling allegations against each other of ill treatment etc. The respondent had moved to Pondicherry to stay with her parents, which resulted in the petitioner filing proceedings in the Hon'ble Supreme Court seeking a writ of Habeus Corpus. That matter was concluded upon the respondent appearing before the Supreme Court and slating that she i s staying with her parents of her own free will and that she shall not rejoin her husband. Those proceedings were concluded. The parties reached some kind of settlement. Even that settlement had failed to work. The matter was pending in the matrimonial Court where by the Trial Court had ordered the parties to lead evidence relating to the plea of desertion primarily because even if the affidavit of the respondent filed before the Supreme Court is considered, two years period of desertion on the date of passing of the impugned order has not yet expired. The petitioner filed proceedings before this Court challenging the impugned order praying that in the light of the prayer, statements of the respondent wife categorically stating that she does not wish to return to matrimonial home, the Court should have allowed the petition for divorce and passed a decree of divorce on the ground of desertion.

(2.) Notices were issued. During the pendency of the petition, parties reached an amicable settlement and filed a petition before this Court, being Exhibit CI. The petitioner paid the air fare for the respondent and her mother to enable them to appear before the Court to make statements in support of the said compromise petition. In their statements in support of the said application, both the parties have prayed that the proceedings pending be converted into a petition undersection 13B and divorce for mutual consent be awarded and the time likely to be taken for the second motion should be waived in the said circumstances of the present case since there is absolutely no doubt that the marriage has already broken down irretrievably. The Trial Court record, which is already here before this Court, was also examined. I have seen the Trial Court record also and from the material available, it is sufficiently clear that it will not be psible for the parties to live together. I had an occasion to examine even the demeanour of the parties and from their manner also, it appeared quite clear that the marriage between them is as good as dead. Sending the proceedings back together with the compromise petition, to my mind, would be a futile exercise leading to further prolongation of the litigation and continued agony of the parties. From the address of both the Counsel also, it became quite clear that the marriage between the parties is lying dead and over. In these circumstances, and keeping in view the litigation in different Courts, which has been going on between the parties over the last about six years, it will be a fit case for cutting across any procedural objections to resolve the matter between the parties in terms of their mutual agreement instead of directing them to go before the Court below. I think that it will be appropriate to withdraw the Hindu Marriage Case No. 557 of 1992 pending before Ms. Veena Birbal, Additional District Judge, Delhi to the file of this Court and convert the original petition intoone undersection 13B. I am supported in taking this view by the decisions, rendered in the cases : (i)Pratibha Prabhakar Matljrekar v. Prabhakar Damodar Manjrpkar, reported as All India Hindu Law Reporter -Volume II 1985 (1) Bombay High Court 361, (ii) Smt.Chandrakanta v. Rajesh, reported as All India Hindu Law Reporter -Volume II 1985 (1) Rajasthan High Court 426, (iii) V. Bhagat v. Mrs. D. Bhagat, reported as JT 1993 (6) SC 428=II (1993) DMC 568, (iv) Mumn Devi v. Kanwal Singh, reported as 1990 (1) CLJ (C,CR. & Rev.) Punjab & Haryana High Court 372, (v) Sandhya Rani v. Kalyanram Narayanan, reported as 1994 Supp. (2) SCC 588, (vi) Pramila v. Rameshwal, reported as 1995 (6) Scale 400 (1) and (vii) Preeti Singh v. Sandeep Singh, reported as 1995 AIR (SC) 1851.

(3.) The statements of the parties have been recorded. The respondent states that the has gone through the petition registered as C.M. 593/94 and understood the contents thereof. She further states that the same is correct and was prepared under the instructions of both the petitioner and the respondent and that the contents thereof are correct and it is signed by her and the petitioner on each page. The said petition at the end is signed by the respondent at point "A" and is Exhibit-01. It is supported by her affidavit which is Exhibit-C2. She also identifies the signatures of the petitioner N.S. Padmanabhan at point "B" of Exhibit-CI and on each page thereof. She acknowledges that their marriage has irretrievably broken down and prays that this petition be treated as one for divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act and also pravs that the original petition HMA No. 587/92 currently pending in the Court of Mrs. Veena Birbal, AD), Delhi be converted into petition for divorce by mutual consent under Section 13B(2). She further states that since they have been in litigation for about six years and have not co-habited with each other since 16.4.1990, the period for second motion contemplated under Section 13 B be waived and the marriage be dissolved by a decree of divorce by mutual consent. She has also undertaken to withdraw all other procredings inter-se between the parties forthwith and prayed that this case be disposed of in terms of the prayers contained in Exhibit-CI. The petitioner's statement was also recorded. He acknowledged the statement of the respondent Mrs. Padmini Padmanabhan recorded in the Court in his presence as correct. He confirms that Exhibit-CI bears his signatures on each page and also at the end at point "B". He states that the application is supported by his affidavit which is Exhibit-03. He also acknowledges that their marriage has irretrievably broken down and prays that this petition be treated as one for divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act. He states that they have not co-habited since 16th April 1990. He also prays that the original petition HMA No. 587/92 currently pending in the Court of Mrs. Veena Birbal, AD), Delhi be converted into petition for divorce by mutual consent under Section 13 B(2). He also states that since they have been in litigation for over six years and have not co-habited with each other, the require- ment of and period for second motion be waived and the marriage be dissolved by a decree of divorce by mutual consent. He states that he gives up all claims to the custody of their children Km. Vijaya Lakshami and Saranya and the children shall be with the respondent for all times. Hestates that he is agreed to withdraw all other proceedings inter-se between the parties forthwith and prayed that this case be disposed of in terms of the prayers contained in Exhibit-C1.