Devi Vs. Promod Kumar Mittal & Anr  INSC 498 (3 April 1996)
A.S. (J) Anand, A.S. (J) Faizan Uddin (J) Dr. Anand.J.
JT 1996 (5) 655 1996 SCALE (3)293
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.
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.
respondent moved the High Court in revision and on 6.10.82 the High Court
remanded the matter for rehearing.
the pendency of the application in the trial court, it was dismissed in default
and on appellant's moving an application for restoration, the same was restored
by the trial court. A revision petition filed by the respondent against the
order of restoration was dismissed.
the High Court also dismissed an application filed under Section 482 Cr.P.C. by
the husband on 16.1.1984.
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 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.
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.
the pendency of the proceedings in this Court, an effort was made for
reconciliation between the parties.
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.
7.12.95, during the course of arguments in the Court, the appellant made the
following statement in this Court:
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:
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 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:
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.
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.
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.
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
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