IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.140 of 2010 AZAD RAKESH KUAMR 'RAMAN' son of Sri Baleshwar Prasad, resident of village-Jamalpur, P.S.-Tharthari, Disrtict- Nalanda. At present residing at Mohalla-Kushwaha Colony, (Ramchandrapur) P.S.-Laheri, District-Nalanda. …Petitioner/Appellant. Versus RITA SINHA @ PUNAM BHARTI, wife of Azad Rakesh Kumar ‘Raman’ Daughter of Sri Bhagwan Das, Resident of Village-Bakra, P.S. Bind, District-Nalanda. At present-C/o Birendra Gandhi, House of J.P. Tiwary, House No.K- 511, P.C. Colony (Hanuman Nagar), behind of State Bank, Patna. ….Respondent/Respondent. ----------- For the appellant : Mr. Amarnath Singh, Advocate. For the Respondent : M/s. Umakant Shukla and Manish Kumar, Advocates. ------------- 12 28.01.2011 Heard the parties. The appellant preferred Matrimonial Case No.31 of 2007 before the Principal Judge, Family Court, Nalanda, seeking judicial separation from his wife, the respondent, on the ground of alleged adultery as well as desertion. The respondent contested the suit and disclosed that she has always performed the duties of a wife and although one female child born earlier died but another female child born on 14.4.2007 is living with her. She has alleged that due to 2 birth of a female child the appellant-husband developed hatred against the respondent as well as the child and unreasonable demands were made by way of dowry leading to her torture. She has claimed that she was saved from being killed due to intervention of neighbours but she was ousted from the matrimonial home. She is living at her parent’s house after 25.5.2007. In that period she lodged an information with the police leading to a criminal case under Section 498-A and other Sections of the Indian Penal Code and under Dowry Prohibition Act against the appellant and some of his family members. Although prayer in the suit was for judicial separation but it was under Section 13 of the Hindu Marriage Act which deals with divorce and after considering the case of the parties and evidence adduced on their behalf, the learned Family Court gave findings against the appellant and dismissed the suit. On behalf of the respondent, it was submitted that the appellant wrongly claimed to be suffering from mental ailment and, in fact, he has taken another wife. However, this allegation was denied by the appellant. The parties were given liberty to settle their disputes amicably and such 3 efforts appear to have borne fruits. The parties found that they are unable to live together as man and wife and, hence, they have opted for divorce by consent on arriving at a mutually accepted settlement with regard to the property by way of permanent alimony. Through various supplementary affidavits on behalf of the appellant, it has been brought on record that the appellant has joint family land at village home and also homestead plot in the town of Biharsharif. The appellant has about 17 kathas of land in his share at Village-Jamalpur in the district of Nalanda. The details of the land in the share of the appellant have been mentioned in the third supplementary affidavit wherein an agreement of family partition/settlement has been annexed as Annexure-‘5’. Schedule no.2 has been allotted to the appellant and it shows that in Khesra No.1207 of Khata No.271, he has 12 kathas of land and in Khata No.269, Khesra No.1588, he has 5 Kathas of land. As per the terms of the settlement between the appellant and the respondent, the respondent will have the right and title over half of the aforesaid agricultural land, which is admitted by the appellant to be his own on account of family settlement with his co-sharers. 4 There was some delay in arriving at a settlement in respect of homestead land at Biharsharif in Khata No.331, Khesra No.1116. In the last and 5th supplementary affidavit filed on behalf of the appellant the land has been re- described as situated in Mauza-Chakhajiyan, Tauzi No.10690, Khata No.2, Khasra No.95 situated in town Biharsharif, Ramchandrapur, District-Nalanda. As per the mutual family settlement, the appellant got in his share plots marked as part A and part B, which is at the top of the rough sketch map in Annexure-‘7’. Out of that, part ‘A’ measuring 20 ft. X 12 ft. 5½ inch towards the Gali has been agreed to be given to the respondent so that she may construct a dwelling unit for herself and her daughter or use that land as per her needs. The part ‘B’, which is adjacent behind part ‘A’ has been retained by the appellant in his share. Part ‘B’ is measuring 15 ft. X 12 ft. 5½ inch. There was some difference as to whether the appellant should pay the arrear of maintenance amount to the respondent or not but ultimately in order to have an amicable settlement to survive, the respondent gave up that claim and on the basis of settlement in respect of lands both at Village home and at Biharsharif as indicated above, the 5 parties have consented for a decree of divorce with aforesaid arrangement in respect of the properties mentioned earlier in favour of the respondent by way of permanent alimony. This Court has been informed by the parties that the appellant will have no objection if the respondent demarcates her 1/2 share in the village land and uses it in any manner for her purpose to earn maintenance for herself or if she is in need, she can sell half of her share by carving out an equal portion from either ends as per mutual convenience within three months from today. The appellant has agreed to give absolute, peaceful and vacant possession of both the lands to the respondent within same period of three months. All these conditions mentioned above are part of consent decree and include permanent alimony. These must be followed by the respondent actively within the aforesaid period of three months, failing which the respondent will be entitled to approach this Court with appropriate application. The aforesaid terms and conditions will form part of decree for divorce granted on basis of mutual consent. On the basis of mutual consent on terms and conditions indicated above, decree for divorce under Section 13 of the Hindu Marriage Act is granted to the appellant and the respondent. The 6 appeal is disposed of in terms of aforesaid compromise. As a consequence, the judgment and decree under appeal shall stand modified accordingly. There shall be no order as to cost. Sanjay-II (Shiva Kirti Singh, J) ( Dr. Ravi Ranjan, J)