Jasbir Singh, J. - (1.) Appellant has filed this appeal against judgment and decree dated 9.1.2006, vide which his application under Section 13 of the Hindu Marriage Act, 1955 (in short the Act), was dismissed. After notice of motion, respondent put in appearance and thereafter, the matter was adjourned, when counsel for the parties stated that there is likelihood of settlement of dispute. The appellant filed an application under Section 151 with a prayer that his application for divorce be treated as an application under Section 13-B of the Act, in view of compromise dated 17.7.2006. Copy of the compromise has been placed on record as Annexure P/1. One receipt of payment of Rs.75,000/-, to the respondent, paid towards full and final settlement of all disputes between the parties. In that agreement, it has also been stated that the respondentwife shall withdraw the criminal proceedings, which are pending before the Court of Chief Judicial Magistrate, Kurukshetra. In view of the application, FAO No.51-M of 2005 - 2 - referred to above, notice was issued and both the parties were directed to come present in Court on the next date of hearing. On 7.9.2006, respondent appeared and she made a statement that she is ready to return the amount received by her. On that date, following order was passed, by this Court:- Counsel for the respondent states that the respondent is ready to return the amount, which she has received, with a view to settle this dispute amicably. An undertaking has been given that on the next date of hearing, respondent shall bring a demand draft of Rs.75,000/- in the name of the appellant. On request, adjourned to September 22, 2006. She failed to turn up on the next date i.e. 22.9.2006, when following order was passed:- Counsel for the respondent states that due to ill health, respondent has failed to turn up today. However, assurance has been given that the amount in dispute shall be paid back on the next date of hearing. On request, adjourned to October 9, 2006. It is made clear that if the money is not paid on the next date, the respondent shall be liable to pay interest also @ 6% per annum from the date of receipt of amount till repayment is made. On 9.10.2006, the respondent came present and on getting instructions, her counsel stated that she shall bring a demand draft of Rs.75,000/- on 16.10.2006. When she failed to do that, on request made by her counsel, the matter was adjourned to 26.10.2006, with an observation FAO No.51-M of 2005 - 3 - that if she failed to bring the amount on the next date, the matter will be dealt with as per law. On 26.10.2006, the respondent again came present in Court and on getting instructions, her counsel stated that one more opportunity be granted to her to repay the disputed amount. On 26.10.2006, following order was passed by this Court and the matter was adjourned to today:- Respondent is present in Court. On getting instructions from her, counsel states that one more opportunity be granted to her to return the money, which she has received in consequent to the settlement arrived at between the parties. Counsel further states that if she failed to make the payment of the said amount on the next date of hearing, order be passed on the basis of compromise placed on the file by the parties. Today, her counsel states that the respondent has failed to turn up. We feel that after entering into a compromise and receiving the money against a receipt, which has been placed on record alongwith C.M. No.14537-CII of 2006 and thereafter resiling from the terms and conditions of compromise, the respondent has tried to usurp the money, which was paid to her for giving consent, to treat application for divorce filed by the appellant, under Section 13-B of the Act.
(2.) It is apparent from the records that the marriage between the parties was solemnized on 11.10.1999. No child was born out of the wedlock. Appellant-husband filed an application for divorce in the year 2004, by stating that he and his parents are being treated with cruelty by the respondent-wife. It was further averred that the respondent had got registered a false criminal case against him and his parents. It was also mentioned that the respondent is living separately w.e.f. June, 2001. It was FAO No.51-M of 2005 - 4 - further stated that in a criminal case, which is pending at Thanesar, the respondent-wife had made a specific statement that she is not ready to live with the appellant. To prove his case, the appellant has produced as many as four witnesses. The Trial Court, by taking too technical view of the entire matter, has discarded that evidence. It has come on record that the criminal cases are pending between the parties and in those proceedings when an offer was made by the appellant to rehabilitate the respondent, she flatly refused to accept the said offer. Before this Court also she made a statement that she is ready to give consent for the divorce. She accepted the amount and thereafter, she resiled and is not returning the amount, accepted by her to give consent for divorce. Many opportunities were given to her to repay that amount, but she has failed to comply with the undertakings given by her/ her counsel before this Court. Otherwise also, perusal of the judgment reveals that it was a case where divorce should have been granted to the appellant-husband as it appears that the marriage has irretrievably broken down between the parties.
(3.) In view of factions mentioned above, this appeal is allowed, judgment and decree passed by the Court below are set aside and the marriage between the parties is ordered to be dissolved by a decree of divorce. Decree Sheet be prepared accordingly. ( Jasbir Singh ) Judge November 10, 2006 ( Pritam Pal ) gk Judge;