SANDEEP KUMAR Vs. NEELAM BHARTI GAUR

JUDGEMENT

(1.) THE petitioner was prosecuting the petition for divorce under section 13 (1) ( i a) and ( i b) of the Hindu Marriage Act before the trial court, when both the parties agreed for a divorce by mutual consent and also decided to resolve their issues regarding maintenance, custody of child etc. . An application was made by the petitioner for converting his pending divorce petition into a petition for divorce by mutual consent, which was allowed. On this, a joint amended petition under Section 13 B (1) of HM Act was filed before the Court for grant of divorce. A joint statement of parties was recorded, which reads as under: hma Case No. 907/2001 joint Statement of: sh. Sandeep Kumar S/o Sh. Dharmender Kumar, R/o Chinta Haran Hanuman Mandir, behind Rajghat Power House, Toker-I, Pusta No, New Delhi (Petitioner No. 1) on S. A: and smt. Neelam Bharti Gaur, W/o Sh. Sandeep Kumar, D/o Sh. Ram Chander Sharma, R/o house No. 133/9, Shiv Puri, Gurgaon, Haryana?. (Petitioner No. 2) on S. A: we were married to each other on 1. 2. 1998 according to Hindu rites and ceremonies at Gurgaon, Haryana. A male child named raghav was born to us on 16. 11. 1998 from our wedlock. We have been living separately since 12. 8. 1999 due to our divergent temperaments and behavior. Efforts for our reconciliation made by our relatives could not bring about bonhomie between us. Now, there is no possibility of our living together without causing mental pain and anguish. So, we have decided to part away permanently in decent manner by taking divorce by mutual consent. We have settled all our claims and disputes against each other amicably regarding dowry articles, istridhan, maintenance, past, present and future and also for permanent alimony and also for custody and maintenance of the minor child as per paragraphs no. 6 to 7 of our petition. The said paragraphs be read as part of our statement and we undertake to abide by the terms contained in the said paragraphs. Now, there is no claim/dispute whatsoever is left between us after this settlement/compromise of any nature whatsoever qua this marriage. Our consent for divorce is voluntary and without any force, fraud and undue influence. There is no collusion between us in filing this petition and its contents are correct. Sd/- ADJ Delhi 29/4/2002.

(2.) A prayer was also made for waiving the period of six months but the Trial Court did not agree to this and passed the following order:

(3.) THE parties have sought a decree of divorce. However, divorce cannot be granted to the parties at this stage in view of specific provisions of section 13-B (2) of the Act ibid which requires the parties to wait atleast for a period of six months from the date of presentation of their first motion petition and then on the filing of second motion after the stipulated period of six months but within the period of eighteen months, the relief of divorce by mutual consent could be granted to the parties concerned. In this view of the legal position, parties are advised to make further efforts for reviving their nuptial relationship. If they failed to effect reconciliation and still wished to part their ways permanently, they may approach the court as per the provisions of Section 13-B (2) of the Hindu Marriage Act for seeking dissolution of their marriage on the basis of mutual consent. With these observations, the present petition is disposed of. File be consigned to record room. 3. Wife thereafter made an application to the Trial Court that the consent given by her for divorce under Section 13-B (1) of Hindu Marriage Act be annulled since after passing of order, the parties had started living together and resumed cohabitation. Notice of this application was served upon the husband, who contested the application and stated that false allegations were made in it that they had lived together. There was no possibility of their living together rather wife had again lodged a false FIR against him and other of his relatives at City Bahadurgarh (Haryana) No. 249 on 4. 10. 2003 under section 498 A read with Section 34 IPC. He also filed an application that direction be issued to the wife to perform second motion under Section 13-B (2)of the HM Act and took a plea that wife could not be permitted to withdraw her consent given for divorce at the time of filing first motion under Section 13-B (1) of HM Act. Wife contested this application. Husband had also made a prayer that in case, the wife was not directed to file second motion, his initial petition under Section 13 (1) ( i a) and ( i b) of the HM Act be revived. The trial Court dismissed the application of the husband for directing the wife to appear for the second motion but revived the case of the petitioner/husband under Section 13 (1) ( i a) and ( i b) of the HM Act.