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PETITIONER: SMT. KANCHAN DEVI

       Vs.

RESPONDENT: PROMOD KUMAR MITTAL & ANR.

DATE OF JUDGMENT:       03/04/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) FAIZAN UDDIN (J)

CITATION:  JT 1996 (5)   655        1996 SCALE  (3)293

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR. ANAND.J.      Leave granted.      The marriage  between the  parties  was  solemnised  on 18.4.73. According  to the  appellant she  was thrown out of the matrimonial  home, after  she gave  birth to four female children one  after the  other which  annoyed  her  in-laws. Thereafter the  respondent husband  neglected and refused to maintain her  which compelled her to file an application for maintenence  under  Section  125  Cr.P.C.  The  trial  court allowed the  application and  granted her  Rs.500/- p.m.  as maintenanced  In   appeal,  the  order  of  maintenance  was maintained but  the amount was reduced to Rs.440/ per month. The respondent  moved the  High Court  in  revision  and  on 6.10.82 the  High Court  remanded the  matter for rehearing. During the  pendency of  the application in the trial court, it was  dismissed in  default and  on appellant’s  moving an application for  restoration, tha  same was  restored by ths trial court.  A revision  petition filed  by the  respondent against   the    order   of   restoration   was   dismissed. Subsequently, the  High Court  also dismissed an application filed under Section 482 Cr.P.C. by the husband on 16.1.1984. While the  matters rested thus it transpires from the record that the  respondent husband  had also  filed a petition for divorce and  obtained  an  ex-parte  decres  of  divorce  on 22.10.80. on a petition filed by the appellant, the ex-parte decrse of  divorce was  set aside on 9.9.83 and subsequently the petition for divorce filed by ths respondent was finally dismissed on 13.10.83. There is variance between the parties as to whether the mater is pending in appeal at the instance of the  husband. No  payment, in  ths case under Section 125 Gr.P.C. was  evar made  to ths  appellant thereby compelling the wife  to seek  execution of  the order.  The  respondent thereupon brought  the  appellant  back  to  his  house.  It appears that  a compromise  was then  arrived at between the parties with  regard to  the order of maintenance made under

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Section 125  Cr.P.C. and as Per the terms of the compromise, the  appellant  agreed  to  accept  Rs.200/-  per  month  as maintenance arrears  with effect  from 10.2.1984  as against Rs.440/- p.m.  awarded in her favour. The appellant, alleges that thereafter  she  was  once  again  thrown  out  of  the matrimonial home by the respondent husband after he had made her to  sign the  compromise deed.  She filed an application under Section  127 Cr.P.C.  on 10.12.84. The application was dismissed in  default on  11.8.86 but on a petition filed by the appellant it was restored by the trial court on 29.8.86. A revision filed by the respondent before the Sessions Judge was dismissed on 9.4.87. An interim order came to be made by the trial court on 24.4..87 enhancing the maintenance amount by Rs.150/-  per month.  The appellant  moved the High Court through a  petition under Section 482 Cr.P.C. and on 4.11.87 the High  Court quashed  the order of restoration, the order of the  Sessions Judge  dismissing the revision filed by the respondent as  also the  order of enhancement of maintenance granted in  favour of  the appellant.  This appeal  calls in question the said order of the High Court dated 4.11.87.      During the  pendency of  the proceedings in this Court, an effort  was made  for reconciliation between the parties. It was  admitted by learned counsel for the parties that the Parties have not been living together for the last more than one decade  as husband  and wife  and their relationship was totally strained  and bitter  against each other. On 7.12.95 it appeared  to us  that there  was no  possibility  of  any reconciliation between  the parties  and that  the  marriage between them  had irretrievably  broken down. The respondent through his  learned counsel  categorically  submitted  that there was  no possibility  of the parties remaining together as husband and wife and that position was not disputed by learned counsel appearing for the appellants.      On 7.12.95,  during the  course  of  arguments  in  the Court, the  appellant made  the following  statement in this Court:      "I have no objection to a decree of      divorce  being   made  bacause   my      marriage with  the  respondent  has      irretrievably broken down provided,      however, the  respondent pays a sum      of   Rs.60000/-    (rupees    sixty      thousand) within  twelve weeks from      today. My  agreement to  divorce by      mutual consent  is subject  to that      condition and  in  the  event  that      amount is  not paid, I shall not be      bound by  this statement,  as it is      without  prejudice   to  my   other      rights in  the case.  On the amount      being paid, the dispute arising out      of the  petition under  Section 125      Cr.P.C. shall also stand settled." The  respondent   husband  also  made  a  statement  to  the following effect:      "Petitioner Smt. Kanchan Devi is my      wife. The relations between her and      myself as  husband  and  wife  have      irretrivably broken  down.  I  have      heard her  statement  made  in  the      court  today.   I  agree  with  her      statement and  shall pay  a sum  of      Rs.60000/- (rupees  sixty thousand)      within twelve  weeks from  today to      her.  That   amount  shall   be  in

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    settlement  of   all  the  disputes      arising  out   of  the  maintenance      proceedings   under   Section   125      Cr.P.C. as  well as  for  grant  of      divorce on  mutual consent.  On the      payment of  the amount  to her, the      parties  should  withdraw  all  the      pending cases  against  each  other      arising    out    of    matrimonial      proceedings  or   the   maintenance      proceedings."      On 18.3.1996  learned counsel for the parties submitted that a  settlement had  been arrived at and the terms of the memorandum of  settlements reading  thus was  filed  in  the court on 18.3.96:      "1. We  agree that  our marriage be      set aside by a decree of divorce on      payment by the respondent of a  sum      of Rs.60000/-  Disputes arising out      of  petition   under  Section   125      Cr.P.C. also stand settled.      2. Parties  agree that  all pending      cases against  each  other  arising      out of  matrimonial proceedings  or      maintenance    proceedings    stand      terminated."      In view  of the peculiar facts and circumstances of the case and  being satisfied  that  the  marriage  between  the appellant and  the respondent  has irretrievably broken dewn and that  there ii  no Possibility  of reconciliation, we in exercise of our powers under Article 142 of the Constitution of  India  hereby  direct  that  the  marriage  between  the appellant and  the respondent  shall stand  dissolved  by  a decrse of  divorce. All  pending cases  arising out  of  the matrimonial  proceedings  and  the  maintenance  proceedings under Section  125 Cr.P.C. pending between the parties shall stand disposed  of and  consigned  to  the  records  in  the respective courts on being moved by either of the parties by providing a  copy of this order, which has settled all those disputes in terms of the settlement. This appeal is disposed of in the above terms. No costs.      Before parting  with the judgment we wish to record, as admitted before  us, that  all the  four  daughters  of  the parties  are  living  with  the  husband  and  he  has  been maintaining them  ever since. He shall continue to do so and the welfare of the children shall be property taken care of. A reasonable  opportunity to  the wife to meet the children, if she  express any  such desire  in writing to the husband, shall be  provided but the said meetings shall take place at the residence  of the  husband and  that too  only on  prior arrangements.