PRABHAT SHEKHAR Vs. POONAM KUMARI

JUDGEMENT

(1.) This first appeal stems out of the judgment of the 1st Additional District Judge, Bhagalpur in Matrimonial Case No. 31 of 1992 in which the appellant, Prabhat Shekhar, had filed a petition for divorce under Section 13 of the Hindu Marriage Act ("the Act" in short) against his wife Smt. Poonam Kumari, the respondent here.

(2.) Having considered the materials brought on the record, and after having failed to bring in reconciliation between the husband and wife, by judgment dated 7-9-2000 the application for divorce was . dismissed on contest but without cost. During pendency of this appeal the appellant and respondent filed a joint application under Order 23, Rule 3 of the Code of Civil Procedure read with Section 13 (b) of the Act. As per this application the appellant has withdrawn all the allegations of adultery levelled against the respondent which was incorporated by way of amendment in the matrimonial petition in the lower Court and both pray that a compromise decree for dissolution of marriage be passed. The appellant further states in this application that he is not ready to proceed with further hearing of the appeal in case this compromise petition is allowed, both also agreeing to bear their own litigation costs. This was signed by the appellant as well by respondent and their counsels.

(3.) When this matter was heard this Court called both husband and wife on 6-11-2003 in the Chambers to make an attempt to bring in reconciliation between the two. Attempt to bring in reconciliation was made in camera in absence of their lawyers. As has been recorded in order dated 7-11-2003 the husband said that they had remained separate since October, 1991, the marriage having taken place on 3-8-1991. The respondent also agreed that physically they had been living separately since two months after their marriage. Though she had found contested the application in the lower Court but in this Court she said that she felt that having been separated with her husband for so many years, and both sides having no encumbrance meaning thereby that they were issueless, she strongly felt that a separation had already taken place not only physically, but also mentally, and so far she was concerned, the marriage had broken down irretrievably. Similar sentiments were also expressed by the appellant. Both of them said that now no reconciliation between them was possible and they had consented for dissolution of their marriage out of their own free will as continuing with the marriage would not serve any purpose.