Court No. - 4
Case :- FIRST APPEAL No. - 185 of 2018 Appellant :- Amit Verma Respondent :- Neha Verma Counsel for Appellant :- Nitin Kumar Agrawal
Hon'ble Bala Krishna Narayana,J. Hon'ble Irshad Ali,J.
This first appeal has been filed by the plaintiff/appellant Amit Verma against the judgment and decree dated 17.02.2018 passed by Principal Judge, Family Court, Ghaziabad dismissing Original Suit No. 1012 of 2017 (Amit Verma Vs. Neha Verma) under section 13 B of Hindu Marriage Act.
Heard Sri Nitin Kumar Agrawal, learned counsel for the appellant and Sri Neeraj Chandra Srivastava holding brief of Sri Jagan Prasad Chaurasiya, learned counsel for the defendant/respondent.
We have heard learned counsel for the parties and also interacted with the plaintiff/appellant Amit Verma as well as his wife Neha Verma, defendant/respondent. A joint affidavit of the plaintiff/appellant and defendant/respondent has also been filed in the Court today which is taken on record.
It appears that a matrimonial petition was filed by the plaintiff/appellant under section 13 B of Hindu Marriage Act on 29.05.2017 for dissolution of their marriage by a decree of divorce on the ground that they had been living separately for a period of one year or more and they had not been able to live together and that they have mutually agreed that their marriage should be dissolved.
The marriage between the plaintiff/appellant and defendant/respondent was solemnized on 09.07.2010 and from the perusal of paragraph nos. 3,8,10 and 11 of the joint divorce petition filed by the parties before the Principle Judge, Family Court, Ghaziabad it transpires that they had been living separately from 09.04.2016 onwards.
The Principle Judge, Ghaziabad dismissed the divorce petition by the impugned judgment and decree holding that the divorce petition was filed on 29.05.2017 and on that date, mandatory period of one year of separation had not lapsed.
Learned counsel for the parties have jointly submitted that the aforesaid finding recorded by Principle Judge, Family Court in the impugned judgment and award is based upon total misreading of the pleadings of the parties as they had started living separately since 09.04.2016 and the mandatory period of separate living had lapsed on the date on which joint divorce was filed before the Principle Judge, Family Court on 29.05.2017.
Moreover, from the perusal of paragraph nos. 5,6,7 and 8, it is apparent that the divorce petition was presented jointly by the parties after the expiry of mandatory period of separate living as provided under section 13-B of Hindu Marriage Act. They have also made a prayer in paragraph 12 of the joint affidavit that this Court may be pleased to dissolve their marriage by passing a decree of divorce on mutual consent.
On being questioned by us, plaintiff/appellant and defendant/respondent reiterated the facts stated by them in their joint affidavit filed in Court today and the defendant/respondent has further admitted having received the entire amount of Rs. 45,00,000/- awarded to her as permanent alimony under section 25 of Hindu Marriage Act.
Having interacted with the parties personally, heard learned counsel for the parties and perused the record, we are of the view that the finding recorded by the Principle Judge, Family Court that divorce petition was presented by the parties before the expiry of prescribed period of one year of separate living is not supported by any material on record rather the same appears to be vitiated by misreading of the record.
We accordingly allow the appeal and set aside the impugned judgment and decree dated 17.02.2018 passed by the Principal Judge, Family Court, Ghaziabad in Divorce Petition No. 1012 of 2017 (Amit Verma Vs. Neha Verma) under section 13B of the Hindu Marriage Act and dissolve the marriage between the plaintiff/appellant and defendant/respondent by a decree of divorce on mutual consent. Original Suit No. 1012 of 2017 stands decreed accordingly.
Order Date :- 23.3.2018 Madhurima