FAO No. M-236 of 2009 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. M-236 of 2009 (O&M) Date of decision: 31.8.2010 Ved Singh .. Appellant v. Sheela .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Rajesh Bansal, Advocate for the appellant. Mr. Sandeep Kumar Sharma, Advocate for the respondent. ... Rajesh Bindal J. The husband is in appeal before this court against the judgment and decree of the learned court below, whereby the petition under Section 13-B of the Hindu Marriage Act, 1955 (for short, `the Act') filed by the parties was dismissed, as on the second motion, the wife did not consent for passing of decree of divorce by mutual consent. During the pendency of appeal before this court, the matter was referred to the Mediation & Conciliation Centre. With the consent of the parties, the dispute was settled before the Mediation & Conciliation Centre on 28.5.2010 and the matter was sent back to this court for passing appropriate order. However, when the case was taken up for hearing, though learned counsel for the respondent-wife was present, but she was not present. Learned counsel for the appellant submitted that the respondent-wife in the present case is playing the game of hide and seek with the appellant. Initially, a petition under Section 13-B of the Act was filed before the learned court below. When the parties appeared at the first motion, the respondent-wife stated that she consented for divorce by mutual consent. However, when the matter was listed at the second motion, the respondent-wife did not consent for grant of divorce by way of mutual consent. All the issues between the parties had been settled when the petition was filed before the court below. However, still when the FAO No. M-236 of 2009 [ 2] matter came up before this court and was referred to the Mediation & Conciliation Centre, the parties again settled the dispute. The permanent alimony, as was settled, was paid by the appellant to the respondent-wife. It was also agreed that the only daughter born out of the wedlock will remain with the mother. It was further agreed upon between the parties that the respondent will withdraw all the pending litigation between them. In spite of all this and getting the amount of permanent alimony, as was settled, the wife is not coming forward to get her statement recorded in the court. Considering the matter in totality, the appellant is entitled to a decree of divorce. On the other hand, learned counsel for the respondent, while not disputing the fact that the matter in dispute was settled before the Mediation & Conciliation Centre in the presence of counsel for both the parties, submitted that in spite of his communications, the respondent-wife has not turned up. Heard learned counsel for the parties and perused the paper book. The facts, in brief, are that marriage between the parties was solemnised on 20.8.2006 at Khanpur Kalan, District Sonepat according to Hindu rites. As is stated in affidavit dated 12.12.2008 filed before the learned court below, the parties are living separate since 20.5.2007 and a female child-Riya was born on 20.4.2008, who is residing with the respondent-wife. A petition for divorce by way of mutual consent was filed by the parties on 12.12.2008 and at the first motion, both the parties got their statements recorded consenting for dissolution of marriage by way of mutual consent. However, when the matter was listed for the second motion on 12.6.2009, the wife stated that she does not want to pursue the divorce petition and wants to withdraw the same. She even filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking maintenance thereafter. Aggrieved against the dismissal of petition for divorce by the learned court below, the husband filed appeal before this court. During the pendency of appeal, on 15.3.2010, with the consent of the parties, the matter was referred to the Mediation & Conciliation Centre in this court. After a number of meetings, the parties settled their dispute on 28.5.2010 in the presence of their counsels. The terms of settlement are extracted below: “(6) The following settlement has been arrived at between the parties hereto: (a) That the parties have agreed to live separately and have agreed to take divorce by way of mutual consent from the FAO No. M-236 of 2009 [ 3] Hon'ble Court. (b) The parties have agreed that the custody of their only child namely Ria who is two years old will remain with the mother- Sheela Devi and the father will not have any right on the daughter in future. The father will not demand any visiting right also. (c) It is agreed between the parties that the sum of ` 1,15,000/- (rupees one lakh and fifteen thousand only) is given as alimony in lump sum by the husband to the wife- Sheela Devi and daughter Ria. This amount is handed over in cash today in the Mediation & Conciliation Centre in the presence of counsels and mediator. It is further agreed that this amount will be full and final settlement for the wife as well as the daughter and no further claim will be made in future either by the wife-Sheela Devi or her daughter-Ria. (d) That all the pending cases if any will be withdrawn by either party and no cases under Section 498-A IPC or under Domestic Violence Act will be filed by any party. (7) By signing this agreement the parties hereto state that they have no further claims or demands against each other with respect to alimony, custody, marital status etc. and all the disputes and differences in this regard have been amicably settled by the parties hereto through the process of mediation. (8) That the parties undertake before the Hon'ble Court to abide by the terms and conditions set out in the agreement and not to dispute the same hereinafter in future.” Thereafter, the matter was fixed before this court. Though the appellant was present in person, however, the respondent was not present. Learned counsel for the respondent stated that in spite of communications by him to the respondent-wife, she has not come present. However, he did not dispute the fact that settlement was arrived at between the parties before the Mediation & Conciliation Centre and even a sum of ` 1,15,000/- was also paid to her as permanent alimony. Considering the fact that the parties at the initial stage had stated before the court below that they are ready and willing to part ways by way of grant of decree of divorce by mutual consent, however, it was only at the second motion that the respondent-wife sought to withdraw the petition already filed. However, FAO No. M-236 of 2009 [ 4] when the matter was referred to the Mediation & Conciliation Centre in this court, the wife consented for grant of decree of divorce by way of mutual consent. This can very well be considered as the statement of the wife at the second motion after the expiry of statutory period of six months. In addition to this also, noticing the fact that the wife has also been paid a sum of ` 1,15,000/- as permanent alimony, I do not find any reason to decline the prayer of the appellant for passing of a decree of divorce by way of mutual consent, merely because the respondent has not appeared in the court as due sanctity has to be attached and credence given to the proceedings before the Mediation & Conciliation Centre as well, whereby by their own free will the parties had settled their dispute and in terms thereof, the respondent had also taken the amount as was settled as permanent alimony payable to her. In view of my aforesaid discussion, the present appeal is accepted. The impugned judgment of the learned court below is set aside. A decree of divorce by way of mutual consent dissolving the marriage between the parties is passed. The appeal stands disposed of accordingly. ( Rajesh Bindal ) Judge 31.8.2010 mk