Hon'ble Vineet Saran, J Hon'ble Naheed Ara Moonis, J This is an appeal challenging the order dated 12.10.2012 whereby the divorce petition filed by the appellant-husband under section 13-B of the Hindu Marriage Act, 1956 (hereinafter referred to as "the Act") has been dismissed on the ground that the respondent-wife was not present and since more than 18 months had passed after the filing of the petition jointly by the husband the wife, mutual divorce could not be granted in the absence of the respondent-wife.
We have heard Sri Krishna Ji Khare, learned counsel for the appellant. In view of the order of date passed on the order-sheet, whereby service on the sole respondent has been deemed to be sufficient, this appeal is being disposed of at this stage.
The facts leading to the filing of the petition under section 13-B of the Act for divorce by mutual consent are that after the marriage of the appellant with the respondent in the year 2006, a First Information Report was lodged by the respondent (wife) against her husband (appellant), which was registered as case crime no. 244 of 2010 under sections 498-A, 323 IPC and section ¾ Dowry Prohibition Act. Challenging the same, the appellant filed Criminal Misc. Writ Petition No. 14341 of 2010. In the said writ petition, the matter was referred to the Mediation Centre of this Court, in which an amicable settlement was arrived at between the parties on 1.5.2011. However, in the meantime, the said Criminal Misc. Writ Petition was dismissed in default, in which a restoration/recall application was filed. Thereafter, on 8.7.2013, the order dismissing the Criminal Misc. Writ Petition no. 14314 of 2010 in default was recalled and the writ petition was allowed with the following order:-
"Heard learned counsel for the petitioners and the learned A.G.A. for the State.
Learned counsel for the parties point out that the dispute has been resolved between the parties and there is a report of the mediation centre dated 8.5.2011 to this effect.
From the perusal of the mediation report, it appears that the petitioners and respondent no. 3 have amicably settled their dispute and they have decided to live separately. The respondent no. 3 is no more interested in prosecuting the petitioners in the present case arising out of Case Crime No. 2442 of 2010 under Sections 498-A, 323 I.P.C. and 3/4 of Dowry Prohibition Act, Police Station Baradari, District Bareilly.
In this view of the matter, the writ petition is allowed and the criminal proceedings arising out of the FIR dated 26.7.2010 registered at Case Crime No. 2442 of 2010 under Sections 498-A, 323 I.P.C. and 3/4 of Dowry Prohibition Act, Police Station Baradari, District Bareilly are hereby quashed. The interim order, if any, stands confirmed."
By the said order, the report of the Mediation Centre dated 8.5.2011 confirming the settlement between the parties on 1.5.2011, was accepted. The settlement dated 1.5.2011 had been signed by the appellant and the respondent, as well as their respective counsel. The relevant paragraph 5 of the said settlement is reproduced below:-
"5. The parties hereto confirm and declare that they have voluntarily and of their own free will arrived at this Settlement Agreement in the presence of the Mediator/Conciliator.
a. That Sri Amit Agarwal (petitioner-husband) and Smt. Pooja Agarwal (Respondent no.3-wife) were married on 21.4.2006. After some time of the marriage, the relation between husband and wife became strained and hence they are living separately. Out of the aforesaid wedlock, they were blessed with a female child namely Gauri who born on 24.10.2007.
b. That a joint affidavit in the shape of an agreement between the parties has already filed before the family court, Bareilly on 7.4.2011, in case no. 331 of 201, which is part of this agreement. In view of the aforesaid affidavit, now both the parties have decided to separate/take Mutual Divorce on the condition of a permanent alimony amount of Rs. 5,00,000/- (Rs. Five lacs) being paid through the bank draft in the name of Smt. Pooja Agarwal/wife by Sri Amit Agarwal/husband.
c. That Sri Amit Agarwal/husband has already paid Rs. 5,00,000/- on 7.4.2011 in the following manner:-
(i) Bank draft no. 323949 of Rs. 1,00,000/- drawn on Punjab & Sindh Bank, Dalmiya Eye Hospital, Civil Lines, Rampur, issued on 6.4.2011.
(ii) Two bank draft nos. 961528 dated 6.4.2011 of Rs. 1.5 lakh and 961520 dated 4.4.2011 of Rs. 2.5 lakhs drawn on State Bank of India, Railway Road, Saharanpur.
The aforesaid drafts have already been paid to Smt. Pooja Agarwal by Sri Amit Agarwal/husband and she has received the same. It is made clear between the parties that after receiving the aforesaid amount, Smt. Pooja Agarwal shall not be entitled to claim any kind of maintenance etc. for herself or her daughter Gauri from her husband or his family members.
d. That both the parties have agreed that their daughter Gauri shall remain in the custody of her mother and she will look after the welfare of her daughter in all manner.
e. That it has been agreed between the parties that this compromise will be treated as their consent for mutual divorce and they shall be free to take formal decree of divorce from the court concerned.
f. That in the view of above noted agreement between the parties, both the parties agree that all civil and criminal cases filed by them against each other including the above noted ones, shall be treated to be withdrawn and the decree of divorce to be passed for all practical purposes from today itself. They also agree that they will file proper application before the appropriate court for the purpose."
From a perusal of the aforesaid agreement, it is thus confirmed that the respondent Pooja Agrawal (wife) has received a sum of Rs. 5 lacs from the appellant Amit Agrawal (husband) by three Demand Drafts of Rs. 1 lac; Rs. 1.5 lacs and Rs. 2.5 lacs. In terms of the said compromise, the criminal case filed by the respondent-wife against the appellant-husband had also been quashed. Clause (e) of paragraph 5 of the compromise agreement (signed by both the parties) clearly mention that the said compromise would be treated as the consent of both the parties for mutual divorce and they shall be free to take formal decree of divorce from the court concerned.
It is not disputed that both the parties have fulfilled their commitment in terms of the said compromise to the extent of payment of Rs. 5 lacs by the appellant to the respondent, withdrawal of criminal case against the appellant by the respondent and also filing of the divorce petition by mutual consent. However, after having once received the amount of Rs. 5 lacs, and filing of the petition for divorce by mutual consent, it appears that the respondent-wife remained a silent spectator and did not appear before the Family Court to enable the court to pass a decree of divorce by mutual consent. She has also chosen not appear before this Court. The Family Court has taken the view that the presence of the wife was necessary within the stipulated period of 18 months and that the Statute required both the parties to be present, and in the absence of the respondent (wife) the case has been dismissed vide the impugned order dated 12.10.2012.
It is true that in cases where divorce is granted on the basis of mutual consent of the parties, the presence of the parties would normally be necessary for allowing such petition but in the facts of the present case, where the respondent-wife has filed an affidavit before the Family Court and thereafter in terms of the settlement arrived at between the parties in the mediation proceedings (on the basis of which the writ petition filed by the appellant was allowed and the permanent alimony, as agreed between the parties, has already been paid to the respondent-wife), the view of this Court would be that consent of respondent-wife can be presumed on the basis of compromise agreement which had been signed by the respondent-wife in presence of the Mediators and has been accepted by the Division Bench of this Court vide order dated 8.7.2013 passed in writ petition no. 14314 of 2010 and also as she has accepted and received the permanent alimony. If this is not so presumed, then the very purpose of the compromise would be defeated. The wife cannot be permitted to accept one part of the compromise and even after accepting the permanent alimony of Rs. 5 lacs and giving her consent for divorce by mutual consent, choose not to appear before the trial court so as to frustrate the very purpose of entering into compromise. The respondent wife has taken the benefit of the compromise agreement and thereafter refused to fulfill her commitment by not appearing in the court, which, according to us, if permitted would encourage the litigants to conveniently withdraw from performing their part of the obligation as enumerated in the compromise agreement, after having taken benefit of the same.
As such, in view of the aforesaid, the presence of the wife on the date fixed before the Family Court was to be presumed as she had accepted all the terms of the compromise and had also acted upon the same by accepting the permanent alimony, and the criminal cases having also been quashed/withdrawn with her consent, and she having signed the papers for divorce by mutual consent. Accordingly, the order dated 12.10.2012 rejecting the application of the parties for grant of divorce on the basis of mutual consent on account of the respondent-wife having not appeared in person deserves to be quashed, and the appellant would be entitled to the decree of divorce by mutual consent.
For the foregoing reasons, this appeal stands allowed. The order dated 12.10.2012 passed by Family Court, Bareilly in case no. 331 of 2011 is quashed. The case no. 331 of 2011, which was filed under section 13-B of the Hindu Marriage Act for grant of a decree of divorce by mutual consent, is allowed and it is declared that the marriage between the appellant and the respondent stands dissolved.