M.M Kumar, J.:— This appeal filed under Section 28 of the Hindu Marriage Act, 1955 (for brevity, ‘the Act’) is directed against the judgment dated 2.2.1995 passed by the Additional District Judge, Ambala dismissing the petition preferred by the appellant seeking divorce under section 13 of the Act.
2. The facts, in brief, are that the parties were united in the wedlock on 22.6.1986 at Ambala Cantt by performing Anand Karaj as per Sikh rites. They lived together after the marriage and co-habited. A male child, namely, Gagandeep Singh was born out of the wedlock on 10.3.1989 at Palampur where the appellant as posted is Junior Engineer.
3. The allegation levelled in the petition reveals that the respondent-wife was not interested in maintaining matrimonial relations with the appellant-husband since the very beginning. She had threatened to involve the appellant-husband and his family members in false criminal cases on numerous occasions. It has been alleged that the father of the respondent-wife concealed material facts with regard to her from the appellant-husband before marriage. Despite that, it is pleaded that the appellant-husband had tried to maintain matrimonial relationship. However, on 24.1.1992 the respondent-wife left the matrimonial home along-with minor children voluntarily and had been living with her parents against the wishes of the appellant-husband. Efforts were made to bring back the respondent-wife to matrimonial home and a compromise was reduced to writing on 28.1.1992 at Sahara Counseling Centre, Ambala Cantt. The allegations is that despite that respondent-wife refused to accompany the appellant-husband. It is further alleged that the respondent-wife filed a petition for restitution of conjugal rights under Section 9 of the Act and ex parte decree was passed by the Additional District Judge on 2.6.1992 On the basis of allegation that the appellant-husband and the respondent-wife have been living separately since 24.1.1992 and also after the decree of restitution of conjugal rights was passed on 2.6.1992, a petition under Section 13 of the Act was instituted on 24.8.1993 claiming that the appeallant-husband has become entitled to a decree of divorce.
4. The stand taken by the respondent-wife in her written statement filed before the Additional District Judge is that the petition is barred under Section 23 of the Act and the appellant-husband cannot be permitted to take benefit of his own wrongs. It has further been asserted that the petition is barred by principle of res judicata. The allegations that the respondent-wife has threatened to initiate criminal proceedings against the appellant husband or any of his family members and that her father concealed material facts from the appellant-husband have been stoutly denied. It is asserted that the respondent-wife has been tortured and maltreated by the appellant-husband and was turned out of the matrimonial home on 24.1.1992 against her wishes. After 24.1.1992, she alongwith her minor son is living with her old parents. The allegation that compromise has been written at Sahara counseling Centre, Ambala Cantt and that she is employed as a teacher earning Rs. 2,500/- per month have been specifically denied. It is further stated that the appellant-husband was visiting the respondent-wife at her parental home and the marriage has been consummated as the appellant-husband stayed with the respondent-wife.
5. The Additional District Judge after framing various issues reached the conclusion that no ground for dissolving the marriage was made out and dismissed the divorce petition. A firm finding has been returned that the appellant-husband remained unable to prove that the respondent-wife deserted the appellant-husband without any sufficient cause. It was further held that no divorce could be granted to the appellant-husband on the ground of desertion by the respondent-wife without any just cause and that the claim was barred by principle of res judicata. The Additional District Judge also reached the conclusion that the appellant-husband reconciled with the respondent-wife after ex parte decree of restitution of conjugal rights was granted on 2.6.1092 and with the volition of both the parties they co-habited on the night of 2.10.1992 at Ambala Cantt at the house of parents of the respondent-wife. Therefore, on the basis of findings recorded on the various issues, the Additional District Judge dismissed the petition of the appellant-husband filed under Section 13 of the Act.
6. The appellant-husband filed the present appeal which was admitted on 11.11.1995 and application filed under Section 24 of the Act for grant of maintenance pendente lite and litigation expenses has been allowed.
7. During the pendency of the appeal, CM No. 13112-CII of 2002 has been filed alongwith a written compromise. According to the compromise, minor son Gagandeep Singh is to remain in the custody of the respondent-wife. It has further been stipulated in the compromise that a sum of Rs. 1,50,000/- in the form of bank draft in the name of minor son Gagandeep Singh is to be paid. The minor son would be entitled to encash the sum through her mother Surinder Kaur. A sum of Rs. 50,000/- has been settled as a total amount of alimony which has to be paid to the respondent-wife as full and final settlement. Accordingly, four bank drafts representing total amount of Rs. 1,50,000/- in the name of minor son have been handed over to the respondent-wife in the Court today. The bank draft numbers alongwith amounts are as under:
Nos. 735693
9.7.2002
45,000/-
Nos. 735694
9.7.2002
45,000/-
Nos. 735696
9.7.2002
15,000/-
Nos. 735695
9.7.2002
15,000/-
8. Another get of two bank drafts representing a sum of Rs. 50,000/- as a permanent alimony has also been handed over to respondent-wife in the Court. The number of the drafts alongwith date of the amount are as under:—
Nos. 735697
9.7.2002
25,000/-
Nos. 735698
9.7.2002
25,000/-
9. In the written compromise, it is stipulated that apart from permanent alimony the respondent-wife would not be entitled to anything from the appellant-husband, nor she would be entitled to claim of any right, title or interest in his property.
10. It is appropriate to mention that Section 13-B of the Act was added by the amending Act 60 of 1976. The amendment represents a synthesis of two extreme views, namely that the marriage is a sacrament and the other view that it is a contract. The amendment postulates and supports view that marriage is a contract and can also be subject to compromise by the mutual consent of the parties. Section 13-B of the Act reads as under:
“13-B. Divorce by mutual consent— (1) Subject to the provision of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have been able to live together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”
11. A perusal of the above Section makes it clear that when two parties to a marriage have been living separately for a period of one year or more and they have mutually agreed that their marriage be dissolved, then on the motion of both the parties the Court may pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree. However, a period of six months has been prescribed by Section 13(b)(1). The question would be whether the period of six months is to be counted from the date of presentation of petition under Section 13 of the Act or from the date of the application. The matter is not res-integra. In various cases this Court has permitted the dissolution of marriage by passing the decree of divorce by counting the period of six months from the date of the petition filed under Section 13 of the Act. This view has been taken in the cases of Suresh Chand v. Kusum, 1998 (1) RCR (Civil) 543 (P&H) (DB) : (1998-3) 120 PLR 181 (DB), Jagdish Singh v. Paramjit Kaur, (1998-1) 118 PLR 702 (DB), Shiv Kumar v. Geeta, 1997 (4) RCR (Civil) 624 (P&H) (DB) : (1998-1) 118 PLR 708 (DB), Arun Chawla… v. Reena…., 1998 (1) RCR (Civil) 575 (P&H) (DB) : (1997-3) 117 PLR 750 (DB), Balwinder Singh… v. Raj Rani…, 2000 (3) RCR (Civil) 399 (P&H) : (2001-2) 128 PLR 273, and Sharanjit Singh… v. Satwant Kaur…., 2000 (20 RCR (Civil) 477 (P&H) : (2001-2) 125 PLR 773.
12. Following the view taken by this Court in the aforementioned judgments, 1 am of the considered opinion that on the basis of the written compromise dated 10.7.2002 signed by both the parties a decree of divorce must be granted to the parties. Therefore, I allow CM No. 13112-CII of 2002 and pass a decree of divorce declaring the marriage between the parties to be dissolved under Section 13-B of the Act. Accordingly, this appeal is allowed by treating the petition filed by the appellant-husband as a petition under Section 13-B.
Appeal allowed.