DEV KUMAR Vs. URMIL

JUDGEMENT

(1.) The appellant (husband) filed a petition under Section 9 of the Hindu Marriage Act, 1956, for restitution of conjugal rights. The marriage between the parties was solemnised according to Hindu rites and that the ceremonies were performed on 21.9.1988 at Chandigarh. After the marriage both the parties lived in the matrimonial home for about a month. Unfortunately, the parties could not contain each other and resultantly, the respondent-wife left the matrimonial home. There is no issue born out of this wedlock. Since 1988, both the parties have been living separately. Numerous efforts had been made for reconciliation of this marriage but all those efforts proved futile. It looks that both the spouses are temperamentally made differently and, therefore, no possibility can be seen to bring them together. Since the efforts had failed, a compromise had been arrived at between the parties for dissolving the marriage. In pursuant to the said compromise a sum of Rs. 1,25,000/- had been paid by the husband to the wife. This amount had been paid in lieu of permanent alimony, dowry and Istridhan etc.

(2.) Apart from the petition filed under Section 9 of the Hindu Marriage Act, no other civil or criminal case is pending between the spouses. The aforesaid petition had been dismissed vide order dated July 27, 2001. The aforesaid order has been challenged by the husband by way of an appeal before this Court.

(3.) During the pendency of the appeal, no indulgence has been shown by either of the parties to live together in the matrimonial home. In fact C.M. No. 9996-III of 2002, has been filed before this Court for conversion of the petition filed under Section 9 of the aforesaid Act into that of a petition under Section 13-B of the Hindu Marriage Act. A composite petition under Section 13-B of the Hindu Marriage Act, 1955 , has been appended with the application which has been duly signed by both the parties. In support of the said petition, the parties while making statements have produced on record the respective affidavits. Both the spouses have desired that the marriage performed between them be dissolved by way of granting consented decree of divorce. They appeared in Court today and have made respective statements on oath. They have tendered in Court their respective affidavits which have been exhibited as Ex. CW1 and CW2. The factum of having received a sum of Rs. 1,25.000/- in full and final settlement of permanent alimony and the claim in respect of dowry articles and Istridhan has been affirmed by the wife. It has been further stated that there is no litigation civil or criminal pending between the parties and that they are not wanting to file any such litigation against each other. Both of them have stated that since they have been living separately since 1988 and that there is no possibility of living together in future, thus, it shall be futile that the hearing of the petition be adjourned for a period of six months as provided statutorily. Both of them have stated that the said period be condoned accordingly and the petition be disposed of by way of granting consented divorce. They have also stated that they have affixed their signatures upon the petition and have sworn the affidavits without any duress, influence or coercion.