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Deccan Education Society, Pune

Shri Navalmal Firodia Law College, Pune

Gate No. 3, Fergusson College Campus,Pune - 411 004.

Phone : (020) - 30866400/01/06/08Website : deslaw.edu.in

Email : [email protected]

Lokmanya Tilak

National Appellate

Moot Court Competition

Paper Book for Civil Appeal

th(9 Edition)

th th24 and 25 February, 2017

Estd. 1884

IN THE COURT OF HON’BLE FAMILY COURT NO. 4 AT THANE

Hindu Marriage Petition (HMP) No. 2530/16

Mr. Sujit Pralhad Jadhav . . . . Petitioner

V/s.

Mrs. Shreya Sujit Jadhav . . . . Respondent

INDEX OF PAPER BOOK

Particulars of Document Exh. Nos. Page Nos.

Roznama -

Memorandum of Petition filed before Ld. Family

Court, Thane – 1

The Marriage Counselor’s report seeking more time

and the same was granted. 13

The Marriage Counselor’s report stated that both the parties have agreed to take divorce by mutual consenton certain terms and conditions.

14

Consent Terms 15

Application by respondent to withdraw her consent. 16

Application by Petitioner to deposit Demand Draft of

Rs. Three Lacs, and order on the application. 16A

Counselor’s report that settlement is not possible. 17

Affidavit of Respondent’s brother 19

Judgment

22

Decree 23

Note:-

1. Appeal Memo to be prepared only on the basis of provided exhibits/documents.

1

5

10

11

12

14

15

16

17

18

27

IN THE COURT OF FAMILY COURT NO. 4, THANE

Hindu Marriage Petition (HMP) No. 2530/2015

ROZNAMA HMP No. 2530/2015

Sujit Jadhav . . . . . Petitioner

Versus

Shreya Jadhav . . . . . Respondent

Before V.V. Ranade, Principal Judge, Family Court, Thane.

1. Petition presented in person by the Petitioner examined and ordered to be registered

under section for

2. Address Pursis (Memorandum of address) filed by the Petitioner.

3. List of Documents alongwith only (4) filed by the Petitioner.

4. Affidavit for Exhibit 1 filed by the Petitioner.

5.

6.

Assigned to Court No. 4

Order passed below Exhibit 1

Issue notice to Respondent on payment of process.

Adj. for return of notice on 21/1/2016.

Sd/- RegistrarFamily Court, Thane

HMP No. 2530/15

Sujit X Shreya Jadhav

2/1/2016 5 Notice issued and sent for service by bailiff.

21/1/16 Resumed Both parties are present.

6 Appearance purshis (Memorandum of Appearance) filed by Respondent. Parties are referred to Smt. S. Jacob, Counselor for Counseling.

Adj. for Counselor report to 25-2-16

Sd/- Judge

25/2/16 Resumed Petitioner absent/Respondent present.

1

7 Application by Respondent for permission to file Vakalatnama.- Allowed.

8 Vakalatnama of Adv. Subodh Kolhe for Respondent filed. 9 Application by Respondent u/s. 24 of H.M. Act 1955 for

for interim maintenance (Other side to say) 10 Supporting Affidavit – Filed.

Adjourned for say to Exh. 9 to

7/3/16 Sd/-

Judge

HMP No. 2530/2015Sujit / Shreya Jadhav

7/3/16 Called on today. Both parties with Advocates are present. 11 Say to Exh. 9 filed by Petitioner. 12 Affidavit filed by petitioner in support of Exh.11 13 Counselor Report - Time – Granted. Adj. for argument on Exh. 9 / Counselor Report to

28/3/16

Sd/- Judge

28/3/16 Resumed Both parties are present. 14 Counselor Report filed … 15 Consent Terms filed on record Adj. for compliance to

5/7/16

Sd/- Judge

HMP No. 2530/2015

Sujit / Shreya Jadhav

5/7/16 Resumed

Both parties are present 16 Application by respondent to withdraw consent from consent terms (Other side to say) Parties re-referred to counselor Adj. for Counselor Report /Compliance

19-7- 16 Sd/- Judge

2

19/7/16 Resumed Both parties are present. Application by Petitioner to keep the D.D. of Rs. 3,00,000/- in Nazar Custody and ordered to be kept in Custody of Nazir. Adj. for Counselor Report Compliance to 6/8/ 16 Sd/- Judge


Counselor Report / Read & Recorded Adj. for W.S. to 4-9-16

Sd/- Judge

4/9/2016 Resumed Petitioner present.

Respondent present. Adv. Present. Adj. for W.S. to 30-10-16

Sd/- Judge

HMP No. 2530/2015

Sujit / Shreya Jadhav


Adj. for W.S. Arg. On Exh. 9 for Interim Maintenance to 12-11-16

Sd/- Judge

12/11/16 Resumed

Both parties are present with their advocates. Adj. for W.S./Arg. on Exh. 9 to 29-11-16

Sd/- Judge

29/11/16 Resumed

Both parties present with their advocates. 18 Application by Resp. for production of

Docs. 19 Affidavit filed by Respondent's brother

3

20 Memorandum filed by Respondent for producing citation - filed. 21 Application by Resp. for Adj. (Other side to say ) say

filed by Petitioner's Adv. on it only Adj. Granted By Consent On and request of Petitioner's Adv. Adj. for W.S./Arg. on Exh. 9 to 6-12-16

Sd/- Judge 6/12/16 Court is busy in hearing of another matter bearing P.A. No.

167/2001 Adj. to 11-12-16

Sd/- Judge

11/12/16 Resumed

Both parties are present with their advocates. Say to Exh. 16 filed by Petitioner below Exh. 16. Court heard Argument on both sides. Adj. for order on Exh. 16/ W.S, 20-12-16

Sd/- Judge


Court delivered 'Judgment along with order below Exh.16' in open court.

22 Judgment 23 Decree

Proceeding is closed. All stamps are punched.

Sd/- Judge

Typed by Sd/- Compared by Sd/- [Round Seal] True Copy

Sd/-

Superintendent Family Court, Thane

4

Exh. - 1

IN THE COURT OF HON'BLE FAMILY COURT, THANE

HMP No. 2530/2015

Mr. Sujit Pralhad Jadhav, Age : 29 years, Occ. : Service, R/at: Aadarshnagar, Pimpalgaon, Thane – 14. . . . . . . Petitioner

Versus

Mrs. Shreya Sujit Jadhav, Age: 26 years, Occ. : -Nil-, R/at: JM Society,Near MP School, Gandhinagar, Thane – 28. . . . . . . Respondent

Petition for divorce under Section 13 (1)(i-a) of Hindu Marriage Act, 1955

The said Petitioner humbly submits before the Hon'ble Court that:-

1. The marriage of the petitioner and respondent was solemnized as per Hindu rites and rituals

in Madhuban Wedding Hall, Thane-Solapur Road, Thane on 30/11/2014. Said marriage was

arranged marriage and before marriage, both petitioner and respondent were unmarried.

While fixing the said marriage, the petitioner or his family has not demanded any dowry or

allied things. Both petitioner and respondent's family have incurred expenses for the said

marriage. Respondent's name before marriage was Miss. Shreya Vamanrao Kale.

2. The petitioner further states that, the petitioner and respondent do not have any issue out of

the said wedlock.

3. The petitioner further states that, all religious rites after marriage in the petitioner's home

were performed as per the tradition. The respondent came down to the home of the petitioner

at aforementioned address to cohabit with him. The petitioner's family is a joint family

consisting member viz. his mother, father, brother, sister-in-law and his son. Before marriage

itself, the respondent and her family members were fully made aware about the same.

However, right at the time of rituals of marriage being performed, the petitioner found the

respondent in stress. Further, he did not find on the face of the respondent any curiosity and

expressions like a new bride. The petitioner was also kept very much silence during the

religious rites in the home of the petitioner and was not talking anything with the people in

the home. However, the respondent thought that as she is new in the home, she needs time to

adjust in such new surrounding and therefore neglected towards the same.

4. The petitioner further states that, after marriage and after completing all religious rites at the

home of the petitioner, the petitioner and respondent got privacy for the first time at night.

The petitioner was very hopeful about this night, however the respondent with her behavior

destroyed all dreams of the petitioner. The petitioner has discussed with the Respondent

various issues and tried to make her relaxed. However, the respondent was not giving any

5

special response. Thereafter, with the consent of the respondent, the petitioner tried to

establish physical relations with the petitioner. However, even before entering into the

physical relationship, the Respondent clearly said, “In this matter you are childish. You can

never make me happy. Actually, I have resisted this marriage. However, I said yes to

marriage because of pressure of my brothers and father. Now, being aware with your sexual

knowledge, you could not make me happy” and the respondent rejected to establish physical

relationships with the petitioner. Because of such statements of the respondents, the

petitioner suffered with tremendous mental harassment and he was shocked. By uttering as

aforementioned, the respondent not only sexually insulted the petitioner but also caused him

metal harassment. Therefore, the petitioner has suffered tremendous physical and mental

harassment.

5. The petitioner further states that, the Respondent always behave rudely with the members in

petitioner's home. She frequently says, 'I want to go to my paternal home and I don't want to

live here' and used to start quarrel with the petitioner, his mother, brother, sister-in-law. Still,

the petitioner, his sister-in-law and petitioner's mother have taken several efforts to make her

understand. Further, the petitioner's sister-in-law and his mother asked the respondent about

whether she is having any problem and why she is not behaving properly with the petitioner.

At that time, the sister of the petitioner said that she is also like a sister to the respondent and

the mother of the petitioner also said that for her, the respondent is like her own daughter and

tried to assure her accordingly. However, she started behaving very imperviously in the

home and used to give adamant reply to the members in the home and insult them. Without

any proper reason, the respondent used to insult the petitioner for every now and then.

Therefore, the petitioner has caused tremendous mental agony.

6. The petitioner further states that, on 21/1/2015 at about 3.00 pm the Respondent left the

home without conveying anything to anybody in the home. The petitioner, his father and

brother have frequently made telephonic calls to the respondent's brother, father, uncle on

several occasions, however none of them responded. At last, when the petitioner went to the

paternal home of the respondent, he came to know that the respondent had come over there.

But, the petitioner was caused lot of mental and physical agony because of such irresponsible

behavior of the respondent and her family members. Thereafter, the petitioner and members

from his family have conveyed all issues pertaining to the respondent's behavior with them

after marriage to her father, brother, uncle of the respondent. The respondent herself has

admitted all such issues in front of her family members. However, the respondent has

rejected to cohabit with the petitioner. At that time, the uncle, brother and respondent's

mother's uncle Mr. Sahuji Godbole (Corporator) has told us that they will keep the

respondent at her paternal home for some days and thereafter will make her understand all

things and send to matrimonial home.

7. The petitioner further states that, the respondent's mother's uncle Mr. Sahuji Godbole was

ex-corporator and he requested the petitioner and his family members to rely on his words

and further assured them that he will settle all things properly. But, still the respondent was

avoiding to return back. Finally, by evening of 9/2/15, the respondent came back to cohabit.

However, by night itself, the respondent clearly told to the petitioner that, “I came here as per

6

the instructions of my maternal family members. Don't get under wrong impression and

don't expect anything from me” and rejected to establish any sexual relations with the

petitioner. Therefore, it causes great mental and physical harassment to the petitioner.

8. The petitioner further submits that, on 10/2/15 at about 2.00 pm, realizing that the petitioner's

mother is alone in the home, the Respondent started quarrel with the mother of the petitioner

saying that, 'though I don't want to cohabit, why are you allowing me to enter into the home ?'

and thereafter she took off the Mangalsutra from her neck and threw it on the mother of the

petitioner and said 'your son is like a dead person to me' and she left the home and went to her

maternal home. Petitioner's mother get shocked with this incident and she called Mr. Sahuji

Godbole and said to him that he has accepted the responsibility of the respondent, still she is

not cohabiting and thereby conveyed him the aforementioned incident. At that time, Mr.

Sahuji Godbole merely said, I will come and meet you. Thereafter, despite of contact made

by the petitioner and his father, the brother, uncle of the respondent have not responded

anyhow. Because of all such incidents, the petitioner suffered tremendous mental agony.

9. The petitioner further states that, on 26/2/15, the brother of the petitioner Mr. Ajit Kale and

Mr. Vivek Kale, respondent's uncle Mr. Amogh Mali and his wife, respondent's mother's

uncle Mr. Sahuji Godbole and the aunt of the respondent who is the resident of village At Post

Khalad, Saswad brought the respondent to the home of the petitioner and left the respondent

over there for cohabitation. At that time, as the respondent is not making any relationship

with the petitioner and is frequently fighting with the members in the home of the petitioner,

the petitioner said to the respondent's brother that, “we will arrange a meeting with some

persons from your side and from our side and will ask the respondent about what she actually

wants and will discuss on the issue and then you may send her for cohabitation”. However,

because of such answer, the aforementioned relatives of the respondent get very angry and

they started abusing the petitioner and his family members and threatened to send them into

jail and forcefully left the respondent in the home of the petitioner. Therefore, the petitioner

caused great mental and physical agony.

10. The petitioner further states, as the respondent does not honestly want to cohabit, she

constantly started disputing with the petitioner and his family members. On 28/2/2015, she

started crying in home right from the morning and started abusing the petitioner. When the

petitioner tried to make her understand, the respondent started giving rude reply to the

petitioner and started breaking household articles. The respondent told to the petitioner, “I

want divorce, otherwise I will commit suicide” and thus started threatening the petitioner

and his family member for commission of suicide and trapping them in police case. Finally,

the petitioner called Mr. Sahuji Godbole and in the same telephonic conversation, the

respondent also clearly told him that I don't want to live here. At last, when the petitioner

called two brother of the respondent, she clearly conveyed to them, “kill me, but I will not

stay here”. Finally, as the respondent was not ready to stay there, the respondent has

collected all her articles and ornaments and left for her maternal home by night on 28/2/15.

Therefore, the petitioner was caused great mental and physical agony.

11. The petitioner further states that, though the respondent was not willing to cohabit, the

7

respondent's brothers are pressuring the petitioner for taking her away with him for

cohabitation. For that sake, as the respondent's brother and her uncle Mr. Sahuji Godbole was

ex-corporator, they are threatening the petitioner saying that they will destroy the petitioner

and his family, if the petitioner will not follow the directions given by the respondent's

brother. The respondent, if comes to the petitioner's home to cohabit, used to insults the

petitioner and give threats of commission of suicide. Further, she also deprived the petitioner

from his matrimonial rights. The respondent has not allowed the petitioner to keep sexual

relations with her and thus harassed the petitioner physically and mentally. Therefore, if the

petitioner cohabits with the respondent, the petitioner apprehends about his own life.

Moreover, the respondent has sent totally false and frivolous notice to the petitioner on

9/7/15 merely to cause financial and mental harassment to him and the petitioner has suffered

with tremendous mental agony because of false allegations made in said notice. Therefore, at

present, as the petitioner required divorce from the respondent, the petitioner has filed the

present petition.

12. The cause of action for filing the present application arose from the solemnization of

marriage of the petitioner and respondent and is further occurring consistently as mentioned

hereinabove.

13. At the last instance, the petitioner and respondent were living together within the jurisdiction

of this Hon'ble Court and as the respondent is also living within the jurisdiction of this

Hon'ble Court, this Hon'ble Court has right and authority to try and decide the said

application.

14. Appropriate court fee stamp is paid by the said petitioner.

15. Provisions in Section 23 of the Hindu Marriage Act, 1955 do not cause any bar to the present

application.

16. The petitioner therefore humbly prayed to this Hon'ble Court –

A) The Petition may please be allowed.

B) The marriage between petitioner and respondent taken place on 30/11/2014 be

dissolve by a decree of divorce under section 13 (1)(i-a) of the Hindu Marriage Act,

1955.

C) The cost of the present case be allowed to the petitioner from the respondent.

D) Amendment be allowed, if required.

E) Other just and equitable orders be passed.

Thane Dated: 19/12/2015 Sd/- Petitioner

Advocate for petitioner

8

VERIFICATION

I Mr. Sujit Pralhad Jadhav, Age: 29 years, Occ.: Service, R/at , Aadarsha Nagar, Pimpalgaon, Thane – 14, state on solemn affirmation that, all aforementioned information is true and correct to the best of my knowledge and belief and hence in confirmation whereof I have signed hereunder today at Thane.

Sd/- Petitioner

Order Below Exh. 1

Both parties present. Parties are referred to Smt. Jacob, Counselor for Counseling

Sd/-

Judge Sujit Jadhav V/s. Shreya Jadhav 21/1/16

Petition u/s. 13 (1) (i-a) Of H.M. Act For Divorce

HMP No. 2530 of 2015

Examined and Ordered to be Registered.

Sd/- Date : 19/12/15 Registrar Family Court, Thane

Assigned to Court No. 4

…………………………..

Retained in Court No. 4

Date : 19/12/15 Sd/- Judge Family Court, Thane

ORDER

ISSUE NOTICE TO THE RESPONDENT R/ON. 21/1/16.

Date : 19/12/15 Sd/- Judge Family Court, Thane

[Round Seal]

9

Exh. 13IN THE FAMILY COURT NO. 4, THANE

HMP No. 2530/2015

Sujit Jadhav . . . . Petitioner

V/s.

Shreya Jadhav . . . . Respondent

COUNSELOR'S REPORT

Order

Granted

Sd/-

Judge

7/3/16

I Smt. Shila Jacob, Marriage Counselor, state in this case as under :-

I have interviewed both the parties individually and jointly. Discussion is under the

process of amicable settlement. Hence necessary time may be granted for further

efforts.

Hence, the report.

Dated : 07.03.2016 Sd/-

SHILA JACOB

COUNSELOR

FAMILY COURT, THANE

[Round Seal]

10


HMP No. 2530/2016


V/s.


Sd/-

Judge

28/3/16

Counselor's Report


I have interviewed both the parties individually and jointly. Both the parties are ready for

amicable settlement and dissolve their marriage by mutual consent. Accordingly I have

executed the consent terms in the presence of their relatives bearing signatures of both the

parties and witnesses.

Hence the report.

Thane

Dated : 28.03.2016

Sd/-

Shila Jacob

Counselor

Family Court, Thane

11

Order

Read & Recorded

Exh. 15

IN THE FAMILY COURT NO. 4, THANE

HMP No. 2530/2015


Versus


CONSENT TERMS

We the petitioner and respondent have discussed in the said petition and mutually decided to compromise on the same on the following terms and conditions :-

Both parties admit

the contents led.

Sd/-

Judge

28/3/16

1. As both of them have realized that it is impossible for them to again cohabit together in future

the petitioner and respondent have withdrawn the allegations and counter-allegations made

by them on each other and mutually have agreed to file a petition in the Hon'ble Court

seeking conversion of petition to divorce by mutual consent.

2. The marriage of the petitioner and the respondent was solemnized at Thane on 30.11.2014 as

per Hindu Vedic rites. Because of differences the petitioner and respondent are living

separately since 28/02/2015.

3. The petitioner and respondent do not have any issue out of the wedlock.

4. Being permanent alimony, the petitioner is ready to pay Rs. 3,00,000/- Rupees (Three Lac

Only) to the respondent. The said amount is to be paid by the petitioner to the Respondent

vide a demand draft in the name of Shreya Vamanrao Kale on the date of judgment in front of

the Court.

nd5. The petitioner will return all articles belong to respondent as per the list on 2 April, 2016.

6. Now there is no dispute between the petitioner and respondent in respect of Stridhan.

7. Henceforth, the petitioner and respondent should not claim for any movable or immovable

properties of the each other.

8. After this compromise, the petitioner and respondent and their relatives should not interfere

in each other's life. Further, they should not interfere in their respective personal life.

12

We, the petitioner and respondent have gone through the contents of the said Consent Terms

and understand and willfully admit the same without any pressure and have put our signatures on

said Consent Terms.

Sd/- Sd/- Petitioner Respondent

Date : 28.03.2016

Before

[Round Seal]

Sd/- Sd/-

1) Mrs. Rupali Jadhav SHILA JACOB

(Petitioner's mother) COUNSELOR

Sd/-

2) Mr. Vamanrao Kale

(Respondent's father)

13

Exh. 16

IN THE COURT OF HON'BLE FAMILY COURT NO. 4 AT THANE

HMP No. 2530/16

Mr. Sujit Pralhad Jadhav . . . . Petitioner

V/s.

Mrs. Shreya Sujit Jadhav . . . . Respondent

Application on behalf of the respondent is as under:-

Other side to say.

Sd/- 11.12.16

On last date, a compromise has taken place by and between the petitioner and respondent. The respondent has entered into such compromise under pressure of her family members. Petitioner has neither paid any amount to respondent nor has he deposited or informed anything regarding it to the Hon'ble Court. Respondent is denying the said compromise. The respondent wants to continue the trial of the case. The respondent is ready for cohabitation. This application is filed.

Sd/- (Mrs. Shreya Jadhav)

Thane Dated : 5/7/2016

Say to the application filed at Exh. 16

Say on behalf of the petitioner to the application filed by the respondent – The compromise pursis contains signature of the father of the respondent. The said application is filed merely to harass the petitioner. The reason given in application is incorrect. There is no affidavit of father or of the respondent alongwith the application. The petitioner is not ready to cohabit with the respondent under any circumstance because she has tried to commit suicide before. Not even for a single time, the petitioner has showed any willingness of cohabitation in last two years. In these circumstances, there is a possibility of more harassment of the petitioner if he starts cohabiting with the respondent. Therefore, it is requested to the Court that the said application may be rejected.

Sd/- 11-12-16

Sujit Pralhad Jadhav

14

Exh. 16A


HMP No. 2530/2015


Versus


Application on behalf of the petitioner is as under :-

DD to be kept in the custody of Nazir.

Sd/- 19.7.16

That in accordance with the decree passed on consent terms dated 28-3-2016 in the petition between the petitioner and the respondent, the petitioner has drawn a Demand Draft No. 280115 of Rs. Three Lacs from State Bank of India in the name of the Respondent. It is therefore prayed to this Hon'ble Court that the same may be allowed for depositing with the Nazar in the Court.

Thane Dated : 19/7/2016 Sd/-

Petitioner Mr. Sujit Jadhav

[Round Seal]

15


HMP No. A 2530/2016


V/s.


Counselor's Report


Both the parties settled this matter amicably and they have earlier, submitted their

consent terms in the Court, but respondent made an application to withdraw her consent and

hence matter was re-referred to me. I have discussed both the parties. At present amicable

settlement is not possible.

Hence the report.

Thane

Dated : 06.08.2016 Sd/-

Shila Jacob

Counselor

Family Court, Thane

Order Read & Recorded

Sd/-

Judge [Round Seal]

6/8/16

16

Exh. 19


HMP No. 2530/2016


V/s.


AFFIDAVIT

Read and

Recorded

Sd/- 11.12.16

I Mr. Ajit Vamanrao Kale, Age : 31 years, Occ. :Business, R/at : Flat No. 6, JM Society, Near MP School, Thane Solapur Road, Gandhinagar, Thane, state on solemn affirmation that–

Copy received.

Sd/- Adv. For Pe��oner 29.11.2016

thMy sister Mrs. Shreya Sujit Jadhav was married to Mr. Sujit Pralhad Jadhav on 30 November, 2014. After said marriage, Mr. Sujit Jadhav never treated my sister properly. He always used to beat my sister. After marriage, he drew out. my sister. Thereafter my father pressurized my sister to enter into consent terms for divorce.

She put her signatures on the consent terms because of pressure given by us. We are in business of selling vegetables. We are not having more income from this business. Our financial condition is poor. My father threatened her saying that, you better settle the issue otherwise I will commit suicide. My father was also helpless because of our financial condition. My sister has put signatures on the consent terms in pressure imposed by us. She never wants to take divorce.

All aforementioned contentions are true and correct to the best of my knowledge belief and information. Hence I have signed this today at Thane.

Thane Dated : 12/11/16

Sd/- Affiant I know the affiant

Sd/- Advocate

17

HMP No. 2530-2015Presented on: 19-12-2015 Registered on: 19-12-2015 Decided on: 20-12-2016 Duration: Y-1 M-0 D-1

IN THE COURT OF JUDGE, FAMILY COURT No. 4, Thane(Presided over by Ms. A. G. Fadanvis)

HMP No. 2530/2015 Exh. No. 22

Mr. Sujit Pralhad Jadhav, Aged – 29 years, Occ. :Service, R/o. Adarshanagar, Pimpalgaon,Thane – 14. . . . .Petitioner

V/s. . .

Mrs. Shreya Sujit Jadhav, Aged – 26 years, Occ. : -Nil-, R/o. JM Society, Near MP School, Gandhinagar,Thane – 28. . . . . Respondent

CORAM : HER HON'BLE MS. A. G. FADANVISthDATED : 20 DECEMBER, 2016

JUDGMENT ALONGWITH ORDER BELOW EXH. 16

1. The main petition is filed by petitioner/husband against respondent/wife for a decree of

divorce on the ground of cruelty u/sec. 13 (1)(i-a) of Hindu Marriage Act.

2. The marriage between the petitioner and respondent was solemnized on 30.11.2014 at

Solapur Road, Thane according to Hindu Vedic Rites. It is an arranged marriage. After

marriage they lived and cohabited together at Pimpalgaon, Thane. There is no issue born

from the said wedlock. Parties are living separately since 28.02.2015. Thereafter, there is no

cohabitation between the parties.

3. Respondent appeared before the Court on 21.01.2016 and both the parties were referred to

Marriage Counselor. The Marriage Counselor vide Exh. 13 requested for more time as the

process of amicable settlement was under discussion and the same was granted. Both the

parties appeared on the following date i.e. on 28.03.2016.

4. On 28.03.2016 both the parties were present and went before the Marriage Counselor.

5. The Marriage Counselor vide her report at Exh. 14 filed on 28.03.2016 has stated that both

the parties have agreed to take divorce by mutual consent on certain terms and conditions.

Accordingly, they jointly filed consent terms at Exh. 15 and decided to dissolve their

marriage by mutual consent. The Petitioner agreed to pay Rs. 3 Lacs to the respondent as full

18

and final settlement of permanent alimony. Petitioner would return all the articles of the

Respondent on 02.04.2016. There will be no dispute between the petitioner and respondent

with regard to the stridhan. The consent terms have also been counter signed by the parents of

the respondent.

6. As agreed in the consent terms petitioner returned all the articles of the respondent and

admittedly she has received the same. The petition was posted on 05.07.2016. Petitioner has

deposited the demand draft dated 07.04.2016 of Rs. 3 Lacs in the name of the respondent in

Court on 19.07.2016 at Exh. 16A.

7. On 05.07.2016, an application came to be filed by respondent to withdraw her consent at

Exh. 16. On 19.07.2016 brother of the respondent filed his affidavit in support of the

application filed by respondent.

8. It is stated by the respondent in her application that she has agreed to the consent terms under

pressure of her family members. She wants to contest the petition. She wants to cohabit with

the petitioner. Petitioner filed his reply to the said application. Petitioner has stated that the

father of the respondent has also signed the consent terms. It is to harass the petitioner this

application has been filed. The reason given by the respondent is incorrect. The father of the

respondent has not sworn his affidavit in support of the same. Petitioner under no

circumstances will take the respondent for cohabitation as she has made an attempt to

commit suicide. Since the last two years, the respondent has never expressed her desire to

cohabit with petitioner under these circumstances, if the petitioner would take her, he would

be more harassed. Hence, he has prayed for dismissal of the application.

9. From the above rival contentions of the parties, the following points arise for my

determination and my findings thereon are as follows :-

POINTS FINDINGS

1. Whether the application filed by the

respondent at Exh. 16 to withdraw the

consent be allowed ? No.

2. Whether the parties are entitled to a

decree of divorce by mutual consent

u/sec. 13B of Hindu Marriage Act ? Yes.

3. What order and decree? As per final order.

19

REASONS

10. Point Nos. 1 and 2 :-

I repeat, the petitioner has filed the present petition for divorce against the

respondent. The parties on the very first date of appearance were referred to the Marriage

Counselor. On the second date, the parties jointly filed the consent terms at Exh. 15 before the

Marriage Counselor and decided to dissolve their marriage by mutual consent. The consent

terms have also been counter signed by mother and father of the respondent. Accordingly, the

respondent received her articles on 02.04.2016 as per the consent terms. On 05.07.2016 the

respondent filed an application for withdrawing her consent terms only on the ground that

she was pressurized by her own family members to execute the consent terms.

11. The learned advocate for the respondent has submitted that as per consent terms clause No. 4

the petitioner had to give the demand draft at the time of decree. There was a specific date i.e.

05.04.2016 to give the articles and the petitioner gave the same on 02.04.2016. Petitioner

fought with the father of the respondent. She did not complain. After the respondent filed the

application for withdrawing her consent, thereafter there were two sittings with the Marriage

Counselor. Marriage Counselor at Exh. 17 gave her report that settlement is not possible. The

petitioner deposited the demand draft on 19.07.2016. Respondent has given her consent

under pressure and not of her free will. The brother has filed his affidavit at Exh. 19 dated

29.11.2016. Respondent is not responsible for the economic hardship caused to petitioner.

The Learned Advocate has relied upon the case of Hitesh Bhatnagar V/s. Deepa

Bhatnagar reported in AIR 2011 SC 1628.

12. The Learned Advocate for petitioner has submitted that the father of respondent has not filed

any affidavit. Affidavit by the brother of the respondent has been filed subsequently, hence

cannot be considered. Respondent has subsequently changed her mind. Respondent wants to

extract more money from the Petitioner. She wants to harass him. The sequence of events are

under :-

Sr.No. Date Exhibit Events

1. 28.03.2016 Exh. 14 Marriage Counselor's report.

2. 28.03.2016 Exh. 15 Consent terms signed by both the parties and parents

of respondent.

3. 02.04.2016 Respondent received her articles.

4. 05.07.2016 Exh. 16 Application by respondent to withdraw consent

terms.

5. 19.07.2016 Exh. 16-A Petitioner deposited demand

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Draft dated 07.04.2016 of Rs. 3 Lacs in Court.

6. 29.11.2016 Exh. 19 Affidavit filed by brother of the respondent.

7. 11.12.2016 Exh. 16 Say filed by petitioner.

8. 06.08.2016 Exh. 17 Report of Marriage Counselor.

13. The contention of the respondent is only that she was pressurized by her family members

to sign the consent terms. The said is not acceptable. The mother and father of the

respondent have also remained present before the Marriage Counselor and have counter

signed the consent terms. Neither of the parents have filed their affidavit to state that they

pressurized respondent. The brother of the respondent has filed his affidavit at Exh. 19 on

29.11.2016 starting therein that his father pressurized respondent. It is no where the case

of respondent or her brother that he was present at the time of signing the consent terms.

It is also stated by respondent that, she wants to cohabit with the petitioner. However, the

respondent has neither filed a counter claim nor a petition for Restitution of Conjugal

Rights.

14. In fact the consent terms were explained by the Marriage Counselor. After signing the

consent terms the Court also confirmed the same with the parties and then took them on

record. Respondent even at that time did not make any grievance of being pressurized by her

parents to the Court. They were not present in Court. As per clause No. 5 petitioner was to

return the articles of the respondent to her on 02.04.2016. Accordingly, respondent has

received her articles on 02.04.2016. If she was pressurized, she could have refused to accept

her articles. It is only after receiving the articles the respondent has then filed the present

application. As submitted by the Learned Advocate for respondent, the petitioner fought

with the father of the respondent, hence it appears that the respondent as an afterthought has

changed her mind.

15. Though the petitioner had to hand over the demand draft to the respondent on the day of

decree as per clause No. 4 of the consent terms but nothing prevented him to deposit the same

in the court prior to the date of decree. In fact, he deposited in the Court the demand draft

dated 04.07.2016, on 19.07.2016 vide Exh. 16-A.

16. Therefore, the petitioner had returned the articles to respondent on 02.04.2016 and had taken

out a demand draft on 04.07.2016. And on 05.07.2016 respondent filed this application.

Hence, the demand draft was prepared much prior to the application dated 05.07.2016 of the

respondent. He has only deposited the same in Court after the application filed by

respondent. In view of the application filed by respondent, parties were referred to the

Marriage Counselor. After discussion with Marriage Counselor, she gave a report at Exh. 17,

that both parties have settled the matter amicably and they have submitted their consent

terms in the Court, but respondent has withdrawn her consent, at present no amicable

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settlement is possible.

17. Marriage Counselor has reaffirmed that both parties have settled the matter amicably and

have submitted the consent terms to the Court.

The respondent had filed an application to withdraw her consent and hence the

matter was again referred to Marriage Counselor for further counseling to amicably settle

the same. During counseling sessions, respondent continued with her stand to withdraw

consent and hence, Marriage Counselor submitted her report that, no further settlement

was possible.

18. The Learned Advocate for respondent has submitted that respondent is not responsible for

economic hardship to petitioner. This attitude of the respondent itself shows the intention of

the respondent. In these circumstances, if the respondent is allowed to withdraw her consent

the petitioner may be put to financial loss. Considering the facts on record, it is difficult to

accept that respondent was pressurized to sign the consent terms.

19. Now the legal provisions of deciding the issue in question is considered. Section 115 of the

Indian Evidence Act deals with the principle of Estoppel. The section reads as follows :-

“115. Estoppel – When one person has by his declaration, act or omission, intentionally

caused or permitted another person to believe a thing to be true and to act upon such belief,

neither he nor his representative shall be allowed, in any suit or proceeding between himself

and such person of his representative, to deny the truth of that thing”.

20. The said rule is founded on the equitable doctrine that it would be most inequitable and

unjust of a person, who by a representation made for by conduct amounting to a

representation made or by conduct amounting to a representation has induced another to act

as he would not otherwise have done, should be allowed to deny or repudiate the effect of his

former statement to the loss and injury of the person who acted upon it. This principle of

estoppel is applicable to the present case, since the petitioner has acted upon the consent

terms and returned all the articles of the respondent to her and deposited the demand draft

dated 04.07.2016 in the name of the respondent in this Court as agreed.

21. The Learned Advocate for the respondent relied upon the case of Hitesh Bhatnagar V/s.

DeepaBhatnagar reported in AIR 2011 SC 1628. In the said case the original petition was

filed u/sec. 13B.

22. It is to be noted that Section 13-B of the Hindu Marriage Act or Sec. 28 of the Special

Marriage Act (both regarding divorce by mutual consent), are special provisions wherein

two parties to the matrimonial dispute, come to an agreement before coming to the court and

jointly file petition for seeking divorce without making any allegations against each other on

the ground that there is incompatibility of nature between them and in that proceedings, the

Court has to make inquiry and satisfy itself that they are not able to stay together and then

pass a decree of divorce by mutual consent.

23. However, it is necessary to distinguish the case in which initially there is no consent between

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the parties and thereafter they come to a conclusion that it is better to have separation by

mutual consent and agreed to certain terms. In such cases, if the court is satisfied that the

agreement is genuine and lawful, there is no question of any hesitation to pass decree in terms

of compromise.

24. In the present petition, the original petition has been filed for divorce on the ground of cruelty

thereafter both the parties have agreed to take divorce by mutual consent and as a result, they

jointly singed the consent terms.

25. Section 23 of the Hindu Marriage Act reads as follows :-

“DECREE IN PROCEEDINGS.

(1) In any proceedings under this Act whether defended or not, if the court is satisfied

that –

(a) …………..

(b) …………..

(bb) When a decree is sought on the ground of mutual consent, such consent has

not been obtained by force, fraud or undue influence.

© …………..

(d) …………..

(e) there is no other legal ground why relief should not be granted, then and in such a

case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be duty of the court in the

first instance, in very case where it is possible so to do consistently with the nature and

circumstances of the case, to make every endavour to bring about reconciliation between

the parties. (Provided that nothing contained in this sub-section shall apply to any

proceeding wherein relief is sought on any of the ground specified in Cl. (ii), Cl.(iii),

Cl.(iv), Cl.(v), Cl. (vi) or Cl. (vii) of sub section 91) of Sec. 13).

(3) For the purpose of aiding the court in bringing about such reconciliation, the court

may, if the parties so desire or if do adjourn the proceedings for a reasonable period nor

exceeding fifteen days and refer the matter to any person named by the parties in this

behalf or to any person nominated by the court if the parties fail to name any person, with

directions to report to the court as to whether reconciliation can be and has been, effected

and the Court shall in disposing of the proceedings have due regard to the report.”

26. The Family Court Act, 1984 is introduced with a view to promote conciliation and secure

speedy settlement of disputes relating to marriage and family affairs. Hence, in view of Sec.

9 and 20 of the Act, which provides that the provisions of Family Court's Act have an

overriding effect on any other law for the time being in force. There is also a special provision

of appointment of Marriage Counselor to assist the Court in discharging its duties.

27. The Government of Maharashtra has framed Rules under the Act in order to have effective

functioning of the Family Court with the assistance of Marriage Counsellor the relevant

provisions of Maharashtra Family Court Rules are as follows :-

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Rule 10 states the functions of the Counselor wherein it is stated that the Counselor

entrusted with any petition shall assist and advise the parties regarding the settlement of the

subject matter of disputes between the parties or any part thereof. The Counselor shall also

help the parties in arriving at a reconciliation.

Rule 26 states that the parties to attend the Counselor for the purpose of counseling.

Rule – 31 reads as follows –

“When the parties arrive at a settlement before the Marriage Counselor relating to the dispute

or any part thereof such settlement shall be reduced into writing and shall be signed by the

parties and counter signed by the Marriage Counselor. The Court shall prenounce a decree or

holder in terms thereof unless the court considers the terms of settlement unconscionable or

unlawful or contrary to the public policy.”

28. Rule – 31 of the Family Court's rule states that the court shall pronounce decree or order in

terms of the settlement arrived at and reduced in writing by and between the parties, unless

the court considers the terms of settlement unconscionable or unlawful or contrary to public

policy. In the instant case, it is an admitted fact that the settlement is arrived at by and

between the parties after the discussion with the Marriage Counselor.

29. In the instant case, it is an admitted fact that the settlement is arrived at by and between the

parties after discussion with the Marriage Counselor. The parents of the respondent were

also present and they have also countersigned the consent terms. Though it is the case of

respondent that she was pressurized by her parents, the same is difficult to accept, as in the

normal course, no parent wants that their daughter should be divorced or be at their house.

Considering the genuineness of the situation, they have also counter signed the consent

terms. Hence, neither of them have filed their respective affidavits in support of the

application nor is it her case that the consent terms are unconscionable or unlawful.

30. In fact, the court would also mention the observation of the Hon'ble Bombay High Court in

the case of PrakashAlumalKalandari V/s. JanhaviPrakashKalandri reported in 2011

(4) Mah. L. J. 187.

31. In the said judgment the Court has clearly distinguished the petition filed simplicitor under

section 13 B of the Act, for divorce by mutual consent. From the petition filed in the first

instance for relief under section 9 to 13 of the Act and during the pendency of such petition,

they decide to invite decree for divorce by mutual consent.

32. The Hon'ble Court has also observed that on the basis of agreement, if the parties were to

execute consent terms and then file a formal petition/application to convert the pending case

to be treated as having been filed u/sec. 13B of the Act to grant decree of divorce by mutual

consent, then in the latter proceedings, before the decree is passed ,either of the party cannot

be allowed to unilaterally withdraw the consent if the other party has already acted upon the

consent terms either wholly or in part to his/her detriment. Further The Hon'ble Court has

laid down two requirements which the court should be satisfied for allowing the withdrawal

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of consent in such situations viz. (i) there is sufficient, good and just cause for allowing the

party to withdraw his consent, (ii) that the other party would not suffer prejudice which is

irreversible, due to withdrawal of the consent. If these two requirements are not satisfied the

Court should be loath to entertain the prayer to allow the party to unilaterally withdraw

his/her consent.

33. Reverting to the facts of the instant case, the sole reason or justification given by the

respondent for withdrawing her consent already given is that she was pressurized by her

parents is not substantiated by her. Though the formal application to convert the petition into

mutual consent petition is not filed by the parties, it is a procedural process nevertheless the

intention to dissolve the marriage by mutual consent is very clear from the consent terms

signed jointly by both parties. The petitioner and respondent both have acted upon the

consent terms. Respondent has accepted her articles as per the terms and also the petitioner

has deposited in Court the demand draft dated 07.04.2016 towards the lumpsum alimony of

the respondent.

34. In para 19 of the said judgment, the Hon'ble High Court has observed the following with

regard to Family Courts (Maharashtra) Rules, 1987. In specific have referred to Rule 31,

settlement before Counselor :-

“Notably, these Rules have been framed by the High Court in exercise of power bestowed in

section 21 of the Family Court Act, 1984. In terms of section 21 (2)© of the Act, Rules can be

framed to deal with the subject of efforts to be made by the Family Court and the procedure to

be followed for assisting and persuading parties to arrive at a settlement. Rule 31, inter-alia,

deals with parties to arrive at a settlement. Rule 31, inter-alia deals with that subject. In terms

of this Rule, therefore, the Court may pronounce a decree on the basis of the consent terms

reduced into writing and signed by the parties, unless it were to be of the opinion that the

terms of the settlement arrived at between the parties are unconscionable or unlawful or

contrary to the public policy. None of these issues have been raised by the appellant. We,

however, make it clear that Rule 31 will be of no avail to pass a decree on the basis of petition

such as for relief under Section 13 of the Act of 1955, as those petitions cannot be decreed

merely because it is not defended or that parties have consented for passing decree on the

ground pleased therein.”

35. Considering all the provisions of law and the observations of the Hon'ble High Court the

court is of the opinion that a decree in terms of consent term to be passed and application of

the respondent deserves to be rejected. Hence, point No. 1 is answered in negative and point

No. 2 in the affirmative and proceed to pass the following order :-

ORDER

1. The respondent's application at Exh. 16 is rejected.

2. The petition is decreed.

3. The marriage between the petitioner and respondent solemnized on 30.11.2014 is

hereby dissolved by a decree of divorce by mutual consent.

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4. Consent terms at Exh. 15 to form part of the decree.

5. Both parties to bear their respective costs.

6. Decree be drawn accordingly.

Sd/- (A. G. Fadanvis)

Judge

Family Court No. 4, Thane Date : 20.12.2016

[Round Seal]

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Presented on: 19-12-2015 Registered on: 19-12-2015 Decided on: 20-12-2016

DECREEIN THE COURT OF JUDGE FAMILY COURT No. 4, THANE

THANE

HMP No. 2530/2015 Exh. No. 23

Mr. Sujit Pralhad Jadhav, Aged – 29 years, Occ. : Service, Adarshanagar, Pimpalgaon, Thane – 14. . . . . Petitioner

V/s. . .

Mrs. Shreya Sujit Jadhav, Aged – 26 years, Occ. : -Nil-, R/o. C/o. Vamanrao Kale, JM Society, Near MP School,Gandhinagar, Thane – 28. . . . . Respondent

The main petition is filed by petitioner/husband against respondent/wife for a decree of divorce on the ground of cruelty u/sec. 13 (1)(i-a) of Hindu Marriage Act.

The marriage between the petitioner and respondent was solemnized on 30.11.2014 at Solapur Road, Thane according to Hindu Vedic Rites. After marriage they lived and cohabited together at Pimpalgaon, Thane. There is no issue born from the said wedlock. Parties are living separately since 28.02.2015. Thereafter there is no cohabitation between the parties.

Both the parties were referred to Marriage Counsellor : The Marriage Counsellor vide her report at Exh. 14 filed on 28.03.2016 has stated that both the parties have agreed to take divorce by mutual consent on certain terms and conditions. Accordingly, they jointly filed consent terms at Exh. 15 and decided to dissolve their marriage by mutual consent.

On 05.07.2016 an application came to be filed by respondent to withdraw her consent at Exh. 16. On 19.07.2016 brother of the respondent filed his affidavit in support of the application filed by the respondent.

thWhereas this petition is came on 20 December, 2016 before Ms. A. G. Fadanvis, Judge,

Family Court No. 4, at Thane for hearing upon final hearing in presence of Petitioner & Respondent court passed the following order:

ORDER

1. The respondent's application at Exh. 16 is rejected.

2. The petition is decreed.

3. The marriage between the petitioner and respondent solemnized on 30.11.2014 is hereby

dissolved by a decree of divorce by mutual consent.

4. Consent terms at Exh. 15 to form part of the decree.

5. Both parties to bear their respective co

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Consent Terms at Exh. 15(As a Part of decree)

We the petitioner and respondent have discussed in the said petition and mutually decided to compromise on the same on the following terms and conditions :-

1. As both of them have realized that it is impossible for them to again cohabit together

in future , the petitioner and respondent have recalled the allegations and counter-

allegations made by them on each other and have mutually filed an application in the

Hon'ble Court seeking conversion of application filed under section 13 B into petition for

divorce.

2. The marriage of the petitioner and the respondent was solemnized at Thane on

30.11.2014 as per Hindu Vedic rites. Because of differences in opinion the petitioner

and respondent are living separately since 28/02/2015.

3. The petitioner and respondent do not have any issue out of the wedlock.

4. Being permanent alimony, the petitioner is ready to pay Rs. 3,00,000/- Rupees Three

Lacs Only to the respondent. The said amount is to be paid by the petitioner to the

Respondent vide a demand draft in the name of Shreya Vamanrao Kale on the date of

judgment in front of the Court.

nd5. The petitioner will return all articles belonging to respondent as per the list on 2

April, 2016.

6. Now there is no dispute between the petitioner and respondent in respect of Stridhan.

7. Henceforth, the petitioner and respondent should not claim for any movable or

immovable properties of the each other.

8. After this compromise, the petitioner and respondent and their relatives should not

interfere in each other's life. Further, they should not interfere in their respective

personal life.

We, the petitioner and respondent have gone through the contents of the said Consent Terms

and understand and willfully admit the same without anybody's pressure and have put our

signatures on said Consent Terms.

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Bill of Cost

Particulars Rs. Ps.

Stamp on Exh. 1 by Petitioner and 100=00 Respondent Total 100=00

th Given in hand and sealed of this court as on 20 December, 2016.

Sd/- [RoundSeal] Sd/- Jr. Clerk

(A. G. Fadanvis)26.12.16 Judge Family Court No. 4, Thane

[Note : Parties to this litigation are hereby inform that any documents which are produced by them if any returned back within six months are liable for destruction after appeal period is over if any.]

[Round Seal]