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Shikha Jaiman v/s Balkishan Jaiman

    Civil Miscellaneous Appeal No. 4041 of 2011

    Decided On, 09 September 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE DALIP SINGH & THE HONOURABLE MS. JUSTICE BELA M. TRIVEDI

    For the Appellant: Neeraj Batra, Counsel. For the Respondent: Pradeep Singh, Counsel.



Judgment Text

1. Heard learned counsel for the parties. Perused the application under Section 5 of the Limitation Act.

2. On the grounds mentioned therein, we are satisfied that there was sufficient cause, which prevented the appellant from filing the appeal within the prescribed period of limitation. The delay is condoned.

3. The application under Section 5 of the Limitation Act stands allowed.

4. This miscellaneous appeal under Section 19 of the Family Court's Act, 1984 has been filed against the

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judgment and decree dated 03.12.2010 passed by the learned Judge, Family Court No.1, Jaipur in divorce petition No.192 of 2010.

5. It is not disputed that an application under Section 13-B of the Hindu Marriage Act was filed jointly by the parties. The order that has been passed is also on the application under Section 13-B of the Hindu Marriage Act and a decree has been passed by consent based upon the said application and the statements of the parties recorded by the learned Judge, Family Court.

6. Sub-section 2 of Section 19 of the Family Court Act specifically bars the entertaining of any appeal against a consent decree.

7. In that view of the matter, the appeal deserves to be disposed of as not maintainable.

8. Submission of the learned counsel for the appellant is that though the application for dissolution of the marriage was filed under Section 13-B of the Hindu Marriage Act, the appellant had on 29.10.2010 moved an application before the learned Judge, Family Court for withdrawing the said consent on the application under Section 13-B of the Hindu Marriage Act. Inspite of the above, it is contended that the consent decree dated 03.12.2010 has been passed by the learned Judge, Family Court.

9. Opposing the above, learned counsel for the respondent-husband has placed before us the copy of the statement of the appellant recorded on 23.11.2010 that is after the application dated 29.10.2010 was filed by the appellant before the learned Judge, Family Court. The said statement was recorded in the Court and in the aforesaid statement the appellant had categorically stated that she has no objection to the decree for dissolution of the marriage being passed and further that the child born out of wedlock would remain with the father.

10. It was, therefore, submitted by the learned counsel for the respondent-husband that based upon the above statement given in the Court the learned Judge, Family Court has rightly passed the decree, as the appellant in her statement had specifically pleaded for the decree being passed.

11. We have considered the rival contentions.

12. In order to appreciate the submissions, it is necessary that the statement dated 23.11.2010 be taken into account, which was recorded by the Court and which fact is not disputed by the learned counsel for the appellant. This statement was recorded before the Court on 23.11.2010 after the application dated 29.10.2010 was filed.

13. The said statement reads as follows :-

'LANGUAGE'

14. It is not disputed that after the aforesaid statements the belongings of the appellant have also been handed over to the appellant by the respondent.

15. As would be evident from the aforesaid statement recorded in Court the appellant had specifically said that 'LANGUAGE'.

16. Thus, there is a categorical statement made by the appellant that she along with her husband want to dissolve the marriage by consent. Moreover, in the entire statement dated 23.11.2010 there is no mention that the appellant wants to resile from the application submitted under Section 13-B of the Act.

17. In that view of the matter, we find no reason to interfere with the judgment and decree of the learned Judge, Family Court dated 03.12.2010 dissolving the marriage between the parties based upon the joint prayer made and consent given. As was stated above that under sub-section (2) of Section 19 of the Family Court Act the appeal is also not maintainable.

18. However, the learned counsel for the parties have agreed that the respondent-husband would pay an amount of Rs.50,000/- on or before 30th September, 2011 to the appellant-wife towards permanent alimony. In addition, the respondent-husband would deposit an amount of Rs.25,000/- in the name of his daughter Kumari Krushi under the guardianship of the mother Smt.Shikha Jaiman on or before 31st December, 2011 and handover the Fixed Deposit Receipt to the appellant-wife. Another amount of Rs.25,000/- would be kept in Fixed Deposit by the respondent/ father in the name of Kumari Krushi under his guardianship. This Fixed Deposit would be made on or before 31st March, 2011. Intimation of these would be submitted before the learned Judge, Family court No.1, Jaipur. The Fixed Deposit shall initially be made for a period of 60-months, to be renewed from time to time and shall not be encashed by either the appellant or the respondent till Kumari Kriuhi attains the age of 21 years and shall be utilized for her benefit.

19. Subject to the above modification, the miscellaneous appeal as well as the stay application stand disposed of.

Appeal disposed of.

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