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MCA/2052/2009 1/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR TRANSFER No. 2052 of 2009
=========================================================
PINKIBEN
RAKTIMBHAI CHAUHAN - Applicant(s)
Versus
RAKTIMBHAI
BABUBHAI CHAUHAN - Opponent(s)
=========================================================
Appearance
:
MR
RAJESH O GIDIYA for
Applicant(s) : 1,
SERVED BY AFFIX.(N) for Opponent(s) : 1,
MR
KALPESH L NADIA for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 15/03/2010
ORAL
ORDER
1. Heard
the learned counsel for the applicant and the learned counsel for the
opponent.
2
Present application has been taken out by applicant Pinkiben
Raktimbhai Chauhan seeking below-mentioned reliefs:
6(B)
That Your Lordships may be pleased to transfer the proceedings of
Hindu Marriage Petition No.967 of 2008 from the Court of learned
Family Court, Ahmedabad to the Court of learned Chief Judicial
Magistrate, Bhavnagar in the interest of justice.
6(C)
That this Honourable Court may be pleased to stay the further
proceedings at Hindu Marriage Petition No.967 of 2008 pending in the
Court of learned Family Court, Ahmedabad, pending the admission,
hearing and final disposal of this application.
3. During
the pendency of the proceedings the contesting parties had expressed
their willingness to explore the possibility of settlement, and
therefore, with the consent of the parties and in view of the
willingness of the parties, the proceedings were referred for
Mediation. The Mediation Centre has, by communication dated
12.3.2010, submitted that as per the report of the learned Mediator,
the mediation proceedings have succeeded and the parties have arrived
at mutually agreeable and amicable settlement. The learned Mediator
has, in his report dated 11.3.2010 which is signed by the petitioner,
the respondent and their respective advocates as well as father of
the petitioner and the father of the respondent, stated as follows:
During
the mediation negotiations take place between the parties, I have
also tried to convince the parties to settle all the disputes between
them and after due deliberation in the joint meeting as well as the
separate sessions with the parties and after discussing and
negotiating with the parents of the parties, the parties have agreed
to settle the dispute as a whole. The parties have arrived at
amicable settlement and they have jointly submitted the terms of
settlement before me as agreed during the mediation. Terms of the
settlement are read over and explained to the respective parties and
they have stated that they have signed the settlement independently,
without any pressure, fear and coercion and upon their freewill.
They have agreed that terms of the settlement are agreeable to them
and it is full and final settlement between them and the same
settlement is Annexed hereto and Mark Annexure I .
In
short the terms of the settlement suggest that the parties have
agreed to take divorce as there is no possibilities of their re-union
and both the parties will give consent in the pending proceedings for
giving divorce by consent as it is not possible for them to live
together. The husband has agreed to pay a sum of Rs.17,51,000=00 to
the wife Pinkiben for the maintenance of herself and son Krishna.
They have also stated in the terms of the settlement the manner in
which the maintenance amount is to be paid. They have agreed to
withdraw all the proceedings filed against each other from the
concerned Courts and the present settlement which is annexed as
Mark-I is full and final settlement between them. Care is also taken
for the minor son in the settlement.
4. The
learned Mediator has also forwarded alongwith his aforesaid report,
the consent terms arrived at between the parties which appears to
have been executed on 11.3.2010 and is signed by the respective
parties.
5. The
learned counsel of both the parties have admitted the consent terms.
The applicant and the opponent are also present in the Court and in
reply to the specific querry by the Court to the applicant and the
opponent they have admitted the consent terms as well as the report
of the learned Mediator and they have agreed to abide by the terms
and conditions mentioned in the settlement dated 11.3.2010. The
learned counsel for the parties have jointly relied upon the judgment
of the Hon’ble Apex Court in the case between Aparna Goyal vs.
Rakesh Goyal reported in 2009 AIR SCW 1447 wherein the Apex Court
has taken note of a settlement arrived at between the parties during
mediation proceedings and having taken note of the terms of the full
and final settlement, disposed of the SLP directing the parties to
abide by the terms of the settlement and also directed the learned
trial Court to pass appropriate order of decree granting divorce by
mutual consent by dissolving the marriage, in view of the settlement
between the parties. The Hon’ble Apex Court, in para 3 of the
judgment, has observed thus:
3.
In HMA No.37/2006 the divorce by mutual consent be passed in terms
of Section 13B(1) and 13B(2) of the Hindu Marriage Act, 1956 by
dissolving the marriage between the husband Rakesh and Aparna Goyal,
the wife in terms of this order.
6.
The settlement provides that the custody of the child namely minor
son Krishna shall remain with the mother i.e. the
applicant-petitioner herein. The relevant Clause 3 reads thus:
The
custody of minor son Krishna shall remain with mother applicant
herein and respondent husband will not make any issue about the
custody of the son. Both the parties have agreed that after son
Krishna attains the age of majority he will be free to decide
independently that with whom he will reside and, if the applicant
mother remarriage in future, then it will be open for the respondent
husband to ask for the custody of son.
7. So
far as the minor son is concerned the parties shall abide by the said
term of the agreement.
8. In
view of the full and final settlement arrived at between the parties,
read with the report of the learned Mediator and having regard to the
admission of the consent terms declared by the applicant and the
opponent who are present in the Court, present application is
disposed of as settled by way of mediation and in terms of the full
and final settlement. Any order with regard to the relief of
transfer of proceeding is, therefore, not required at this stage.
Hence the applicant seeks permission to withdraw this application
with a liberty to place the full and final settlement on record of
the respective Courts where the proceedings are pending.
9. As
and when copy of full and final settlement, along with the report of
the Mediator is placed on record, the trial Court shall dispose of
the proceedings in accordance with law after taking into account the
full and final settlement as well as the report of the learned
Mediator.
10.
Since, in view of the settlement between the parties, the parties
jointly request for divorce by mutual consent, the trial court
shall pass necessary and appropriate orders, in accordance with law
in the HMP Suit No.967 of 2008 pending in the Family Court at
Ahmedabad.
11.
In view of the full and final settlement dated 11.3.2010 arrived at
between the parties and referred by the learned Mediator in his
report, the opponent shall pay a sum of Rs.17,51,000/- to the
applicant (his wife Pinkiben) for maintenance of herself and son
Krishna.
12. The
parties shall withdraw the proceedings filed against each other from
the concerned courts by placing the settlement and the report of the
learned Mediator on record.
13. The
opponent has assured the Court that the cheque will be duly cleared
and honoured.
14. With
the aforesaid clarification and direction, the application is
disposed of as withdrawn/not pressed. The parties are at liberty to
place present order as well as the consent terms and report of the
learned Mediator on record of the proceedings before the concerned
court and request for appropriate final orders in the proceedings.
(
K.M. THAKER, J. )
syed/
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