HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA F.C.A.M.P. No. 311 of 2011 in F.C.A.No.101 of 2011 F.C.A.M.P. No. 320 of 2011 in F.C.A.No.92 of 2011 AND F.C.A.Nos. 92 AND 101 OF 2011 DATED 13TH OCTOBER, 2011. Between Eluru Venkata Naga Manasija ..Appellant/Petitioner. And Eluru Raghu Nandana Sai ….Respondent/Respondent. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA F.C.A.M.P. No. 311 of 2011 in F.C.A.No.101 of 2011 F.C.A.M.P. No. 320 of 2011 in F.C.A.No.92 of 2011 AND F.C.A.Nos. 92 AND 101 OF 2011 COMMON ORDER: Having due regard to the divergence of the views expressed by the two learned Judges constituting a Division Bench of this Court, the matter has been referred to me by the Honourable the Chief Justice for the opinion of the third Judge. I have had the advantage of going through the Judgments of both the learned Judges. The facts and the contentions of the appellant-wife and respondent- husband have been narrated in extenso therein and, therefore, there is no necessity to reiterate except mentioning the same wherever necessary to elucidate and adjudicate the point in controversy. For the sake of convenience, the appellant and the respondent herein are referred to as ‘the wife’ and ‘the husband’ respectively. The husband filed HMOP No.130 of 2009 under Section 9 of the Hindu Marriage Act, 1955 (for brevity ‘the Act’) on the file of the learned Family Judge-cum- Additional District Judge, Guntur, (hereinafter referred to as ‘the Court below’) seeking restitution of conjugal rights. On the contrary, the wife filed HMOP No.146 of 2009 under Section 13 (1)(ia) of the Act before the Court below seeking dissolution of marriage with the husband by a decree of divorce. The Court below, upon consideration of the evidence both oral and documentary adduced by both the parties, allowed HMOP No.130 of 2009 instituted by the husband and dismissed HMOP No.146 of 2009 instituted by the wife by its common Judgment dated 28.02.2011. Aggrieved thereby, the wife preferred FCA No.92 of 2011 in so far as the impugned Judgment pertained to HMOP No.130 of 2009 while FCA No.101 of 2011 was preferred by her challenging the common Judgment whereby HMOP No.146 of 2009 was dismissed. During the pendency of the aforesaid appeals before this Court, the wife filed two miscellaneous petitions, viz., FCAMP Nos.320 and 311 of 2011 in FCA Nos.92 and 101 of 2011 respectively under Order XXIII Rule 3 read with Section 151 of the Code of Civil Procedure (CPC) annexing therewith separate but similar memorandums of compromise duly signed by both the husband and the wife and their respective counsel praying this Court to record the compromise in terms thereof. Heard both the leaned counsel. They almost reiterated the contentions that were advanced before the Division Bench which delivered two divergent Judgments. It is relevant to note that during the pendency of the two appeals preferred by the wife before this Court, providentially, good sense has since prevailed and the parties have been able to amicably settle their disputes and have decided to put a quietus to the litigations between the parties. They have reduced such terms to writing in the form a memorandum of compromise which has been annexed to the miscellaneous petitions separately filed before this Court in both the appeals duly signed by them and their respective counsel. The memorandum of compromise was dated 11.07.2011 and the same was taken on record. For better understanding of the issue and effective adjudication of the same, it is necessary to have a look at the terms of the compromise agreed to in between the husband and the wife which were reduced to writing in the form of memorandum of compromise and they inter alia read as under: “1. It is submitted that in the above appeal the appellant is the petitioner in the HMOP No.146 of 2009. The appellant (wife) filed HMOP.No. 146 of 2009 in the Court of Judge, Family Court-cum-Add. District Judge, Guntur against the respondent (husband) for divorce under Section 13(1)(ia) of the Hindu Marriage Act. The said HMOP.No.146 of 2009 was dismissed by the trial Court by order dated 18.02.2011. Aggrieved by the same, the appellant (wife) filed the above appeal and the appeal was admitted on 28.04.2011 and pending before this Honourable Court. 2. It is submitted that during the pendency of above appeal, on the advise of elders, parents and well wishers of the appellant herein and respondent here in the matter is settled amicably out of Court. The appellant and respondent have decided to put an end to their agony by deciding to live separately by obtaining the divorce on mutual consent. The petitioner and respondent have no issues from the date of their marriage. The respondent has no objection to give divorce to the appellant/petitioner by dissolution of their marriage dated 26.03.2008 and have decided to reduce the terms of compromise in writing and filed memorandum of compromise signed by the appellant and respondent in the above appeal and seek disposal of the said appeal in terms of Memorandum of compromise. Accordingly the terms of compromise as finally decided by the parties in the subject matter are reduced into writing as under: a) The respondent (husband) has no objection to give divorce to the appellant/petitioner by dissolving their marriage dated 26.03.2008 which was held in Sri Gokaraju Rangaraju Kalyanamantapam, Vijayawada. b) The petitioner has taken her household articles and respondent also taken his articles belonging to him and each party have no claim whatsoever. c) The appellant shall not claim any maintenance from the respondent and appellant will not have right to claim any maintenance in future against the respondent or their relatives. d) There is no coercion, undue influence or misrepresentation in presentation of this Memorandum of compromise. Both petitioner and respondent accept and admit the allegations made in the OP. e) It is further submitted that both the petitioner on a mutual consent had come to a meaningful understanding as it was decided that they should part their ways and lead separate lives choosing their own respective peaceful ways of living. f) In the light of the aforesaid circumstances, both the petitioner and respondent herein have decided mutually to part their ways from the matrimonial life by getting the marriage dissolved and by obtaining a decree of mutual divorce and lead separate lives choosing their own respective peaceful ways of living each party. g) Both the parties hereby admit that as per the terms of compromise the case filed under the domestic violence act with DVC.No.1/2010 on the file of the First Class Judicial Magistrate for Prohibition and Excise, Guntur was not pressed by the appellant on 7.7.2011 and similar steps will be taken for withdrawing/closing the complaint with CC No. 98 of 2010 on the file of the First Class Judicial Magistrate for Prohibition and Excise, Guntur by both the parties in order to enable them to live separately after the divorce. It is therefore prayed that this Hon’ble Court may be pleased to pass a decree of divorce by dissolving the petitioner and respondent marriage dated 26.3.2008 by allowing appeal and pass such other order or orders as deem fit in the circumstances of the case and in the interest of justice.” From the above it is palpable that on the advice of the elders, their parents and well-wishers, the issue pending for consideration in both the appeals before this Court was settled out of court amicably; and that the husband has no objection to give divorce to the wife by dissolving their marriage; and that the wife took back her household articles while the husband took back his belongings and they have no claim whatsoever; and that the wife should not have any right to claim maintenance in future either form the husband or his relatives; and that there was no coercion or undue influence or misrepresentation to them while agreeing to the terms of the compromise and they did accept the allegations made earlier against each other; and that they chose to live separately and peacefully on their own way of living; and in that process the wife withdrew the domestic violence case in DVC No.1 of 2010 pending on the file of the Judicial Magistrate of First Class for Prohibition and Excise, Guntur, as not pressed and she took similar steps in withdrawing the complaint in C.C.No.98 of 2010 pending on the file of the said Court at Guntur. They did realise that the marriage has broken down irretrievably and therefore, in their interest, prayed that the marriage be annulled by a decree of divorce by dissolving the marriage performed on 26.03.2008 between them. It is also relevant to look at the prayer sought for in one of the miscellaneous petitions filed in the main appeals (be it noted that prayer in both the petitions is similar) which is useful for their effective adjudication and which reads as under: “I humbly prays that this Hon’ble Court may be pleased to record the said memorandum of compromise enclosed herewith and dispose the above FCA No.101 of 2011 appeal in terms of the said memorandum of compromise in the interest of justice.” A careful reading of the above makes it clear that a prayer is made to record the terms of compromise contained in the memorandum of compromise and dispose of the appeals pending before this Court. It therefore goes to show that the miscellaneous petitions are only filed in the appeals pending before this Court but not otherwise. Order XXIII CPC deals with withdrawal and adjustment of suits and Rule 3 thereof deals with compromise of suit. Rule 3 of Order XXIII CPC reads as under: “Order XXIII – Withdrawal and adjustment of suits 3. Compromise of suit:- Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject mater of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court for reasons to be recorded, thinks fit to grant such adjournment. From a reading of the above provision makes it abundantly clear that if a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance with the terms thereof. It is a settled principle of law that once a dispute is validly and amicably settled out of Court between the parties to a litigation, it is open to them to move the Court to pass a decree in accordance with the terms of such compromise. In fact, the provisions of Rule 3 of Order 23 CPC provides therefor. This is a mandatory provision. In the present case, both the factum and the validity of the compromise are not in dispute. In those circumstances, there is no option except to accept the same and pass an order in terms of such compromise. That apart, as can be seen from the record, it is clear that the husband filed a petition in HMOP No.130 of 2009 under Section 9 of the Act seeking restitution of the conjugal rights alleging that his wife went away from the matrimonial home without any valid reason and that despite mediation, she did not come back and live with him whereas the wife filed a petition in HMOP No.146 of 2009 under Section 13(1)(ia) of the Act seeking a decree of divorce alleging that the husband treated her with cruelty before the Court below. The Court below allowed the petition filed by the husband for restitution of conjugal rights while dismissing the petition filed by the wife for a decree of divorce by its common Judgment dated 18.02.2011. Aggrieved thereby, the wife filed two separate appeals before this Court as stated supra. It is evident from the record that the marriage took place on 26.03.2008 and the parties have been living separately from 15.06.2009 and that they have spent the prime of their life in acrimony and litigation. They have no issues from the said marriage and from the record it is apparent that the disputes that have arisen between them have reached such a position that the marriage has broken down irretrievably in spite of the efforts of their parents, elders and well-wishers. Pursuant to an order of this Court, both the parties have appeared before me in person. Upon a specific query from this Court, they stated that they, being well educated, understood the effect and consequences of the terms reflected in the memorandum of compromise dated 11.07.2011 and are agreeable to an order on the basis thereof granting a decree of divorce under Section 13(1)(ia) of the Act. After questioning the parties thoroughly, I am fully convinced that the memorandum of compromise filed by them is not the result of any coercion or undue influence by any external factor. It is therefore evident that they are eager to dissolve the matrimonial tie so that they can rearrange their lives well in time. The enforced continuity of the marriage, if any, would only mean that the parties are forced to spend more years in bitterness against each other. I n SANGHAMITRA GHOSH v. KAJAL KUMAR GHOSH [(2007) 2 SCC 220] , the Supreme Court observed that it is indeed the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained. But, as aptly observed by it in NAVEEN KOHLI v. NEELU KOHLI [(2006) 4 SCC 558], when a marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. The Supreme Court ultimately held thus: “18. In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli case [(2006) 4 SCC 558].” In the present case, having heard both the learned counsel, after perusing the material placed on record including the miscellaneous petitions filed under Order 23, Rule 3 read with Section 151 of the CPC in the pending appeals and the memorandum of compromise annexed therewith and in view of the discussion made hereinbefore, I am of the definite opinion that the marriage between the parties has broken down irretrievably and with a view to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may lead separate lives peacefully hereafter choosing their own way of living, they filed the present miscellaneous petitions praying this Court to record the said memorandum of compromise and dispose of the pending appeals in terms thereof. While these are the facts emanating from the material made available before me, it is inexplicable as to how the provisions of Section 13-B of the Act have fallen for consideration, more particularly, when neither the petitions were filed thereunder nor was a reference made thereto in the petitions filed before this Court or even before the Court below. On the other hand, prior to the filing of the miscellaneous petitions filed before this Court seeking permission to record compromise in terms of the memorandum of compromise, the wife has been pursing both the appeals preferred against the petitions filed under Sections 9 and 13(1)(ia) of the Act filed before the Court below. Therefore, even before the Court below also neither a petition under Section 13-B was filed either by the husband or wife, nor was there any reference made to the said provisions. Further, the miscellaneous petitions were specifically filed before this Court in the pending appeals under Order 23, Rule 3 of the CPC. That being so, I am of the considered view that the question of consideration of the provisions of Section 13-B of the Act does not obviously fall for consideration of this Court in the cases on hand. Compromise under the provisions of Order 23, Rule 3 CPC can be recorded if facts and circumstances of a given case so warrants. Having due regard to the peculiar facts and circumstances of the cases on hand, the miscellaneous petitions filed in the pending appeals seeking to record compromise in terms of the memorandum of compromise can be ordered as per the provisions of Order 23, Rule 3 of the CPC and a decree of divorce can be passed under Section 13(1)(ia) of the Act on the ground of cruelty as sought for and in that process, there is no need to consider and apply the period of six months stipulated under Section 13-B(2) of the Act to the cases on hand as that is an independent provision and is applicable to a petition filed under Section 13-B of the Act, which will be dealt with a little later. Thus, I am in complete agreement with the conclusion reached by my learned Brother VE,J in so far as granting a decree of divorce under Section 13(1)(ia) of the Act on the ground of cruelty to the wife and husband herein by duly recording the terms of compromise reflected in the memorandum of compromise dated 11.07.2011 without any reference to six months period stipulated in Section 13-B(2) of the Act in as much as the prayer sought for in HMOP No.146 of 2009 filed by the wife before the Court and the prayer sought for in the miscellaneous petition are one and the same. Furthermore, in view of the specific submission of the learned counsel for the husband that the allegations made by the wife in her petition filed before the Court below seeking a decree of divorce under Section 13(1) (ia) of the Act are really true and that his client is not gainsaying any of the averments put forth therein albeit he contested the said petition before the Court below; as rightly observed by my learned brother VE,J, basing on the said admission by the husband himself through his counsel, the appeal filed by the wife can be allowed even without making any reference to the petitions filed under Order XXIII, Rule 3 CPC. However, this course need not be adopted in the cases on hand, in the light of the filing of the miscellaneous petitions under Order XXIII, Rule 3 CPC annexing therewith memorandum of compromise dated 11.07.2011 seeking this Court to dispose of the appeals in terms thereof. In so far as Section 13-B of the Act is concerned, although the same does not fall for consideration in the cases on hand as stated supra, purely for the sake of argument but not otherwise as reference to the said provision was made by both the learned Judges in their separate Judgments, it is necessary to have a look at Section 13-B of the Act, which reads as under: “13-B. Divorce by mutual consent: (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.” [Emphasis is mine] A bare perusal of the said provision makes it clear that a petition for dissolution of marriage by a decree of divorce can be presented by both the parties to a marriage together to the District Court in the first instance on the ground that they have been living separately for one year or more and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. This is one of the independent remedies that were provided by the legislature to the parties to a marriage under the Act. On such motion being made by both the parties to a marriage, not earlier than six months after the date of the presentation of such petition but not later than eighteen months therefrom, if such petition is not withdrawn in the meanwhile, the Court of first instance shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit that a marriage has been solemnized and that the averments in the petition are true; pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree so granted. It is therefore manifest that petitions under Section 13-B of the Act shall invariably be made before the Court of first instance by both the parties to a marriage if they have been living separately for a period of one year and more and in such a case, the same shall be taken up for adjudication and be disposed of after six months from the date of filing such petition but not later than eighteen months therefrom. However, such condition of waiting for six months period is not applicable to the petitions filed before the appellate Court and the appellate Court can order the petition filed under Section 13-B of the Act in any of the proceedings pending before it provided the facts and circumstances of such case so warrants. I am fortified in my above view by the observations of a Division Bench of this Court in K.OMPRAKASH v. K.NALINI [AIR 1986 AP 167] and also by the Judgment of a Division Bench of Punjab and Haryana High Court in MADAN LAL v. NIRMAL KANTA [1990 (1) HLR 168 P&H (DB)]. The raison detre perhaps is that by the time the matter reaches to the appellate Court upon disposal of the petition by the Court of first instance, more than six months time might have obviously elapsed from the date of filing of such petition before it under provisions of the Act. In K.OMPRAKASH v. K.NALINI, a Division Bench of this Court, speaking through P.A.Choudary, J (as he then was) while dealing with the provisions of Section 13-B of the Act, pithily held thus: “10. For all the