# Eti Tyagi v. Prince Tyagi

- **Citation:** (2023) 8 ILRA 748
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** First Appeal No. 170 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/eti-tyagi-v-prince-tyagi-50567
- **Pages:** 3

## Headnote

(A) Family Law - Family Court Act, 1984 -
Section
19(1)
-
Appeal,
The
Hindu
Marriage Act, 1955 - Section 13-B -
Divorce by mutual consent - all amicable
settlements is bound to be respected and
recognized by the courts of law in all such
cases
where
the
MOU
remains
unquestionable and the parties have acted
upon freely in the pursuit of Article 21 of
the Constitution of India to live with
dignity - an amicable settlement deserves
8 All. Eti Tyagi Vs. Prince Tyagi
749
to be recognized in law with promptitude.
(Para - 6,7)

case of two parties - amicably settled their
matrimonial dispute through 'Memorandum of
Understanding' - chosen to part ways in a
situation where marital relationship had turned
completely irretrievable - parties acted upon the
MOU - parties - both educated and employed.
(Para -5)

HELD:-In the peculiar circumstances of the
case, the Family Court's order has been set
aside and the matter is remitted for a fresh
decision. Remaining six months waived and
application 12-C allowed. Family Court is
directed to finalize proceedings under Section
13-B within two weeks. (Para - 8)

First appeal disposed of. (E-7)

List of Cases cited:-

## Text

748 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Under the circumstances, the
submission of learned AGA appears to have
force. The order impugned in the writ
petition would, therefore, be revisable
under Section of Code of Criminal
Procedure which reads as follows:-

"Section 397. Calling for records to
exercise powers of revision.

(1) The High Court or any Sessions
Judge may call for and examine the record
of any proceeding before any inferior
Criminal Court situate within its or his
local jurisdiction for the purpose of
satisfying itself or himself as to the
correctness, legality or propriety of any
finding, sentence or order,- recorded or
passed, and as to the regularity of any
proceedings of such inferior Court, and
may, when calling for such record, direct
that the execution of any sentence or order
be suspended, and if the accused is in
confinement, that he be released on bail or
on his own bond pending the examination
of the record. Explanation.- All Magistrates
whether Executive or Judicial, and whether
exercising original or appellate jurisdiction,
shall be deemed to be inferior to the
Sessions Judge for the purposes of this sub-
section and of section 398.

(2) The powers of revision conferred
by sub- section (1) shall not be exercised in
relation to any interlocutory order passed in
any
appeal,
inquiry,
trial
or
other
proceeding.

(3) If an application under this section
has been made by any person either to the
High Court or to the Sessions Judge, no
further application by the same person shall
be entertained by the other of them."

10. Under the circumstances and since
the order impugned is a final order, we are
constrained to hold that against the
impugned order, the petitioner has a
statutory alternative remedy of filing a
revision under Section 397 Cr.P.C..

11. The writ petition is, therefore,
dismissed as not maintainable granting
liberty to the petitioner to file revision
against the order impugned for redresal of
his grievances.

12. It would be relevant to observe
that in our considered opinion, the
petitioner may be entitled to the benefit of
Section 11 of the Limitation Act in case,
such plea is raised before the revisional
court.
----------
(2023) 8 ILRA 748
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 170 of 2023

Eti Tyagi ...Appellant
Versus
Prince Tyagi ...Respondent

Counsel for the Appellant:
Atul Dixit

Counsel for the Respondent:
--

(A) Family Law - Family Court Act, 1984 -
Section
19(1)
-
Appeal,
The
Hindu
Marriage Act, 1955 - Section 13-B -
Divorce by mutual consent - all amicable
settlements is bound to be respected and
recognized by the courts of law in all such
cases
where
the
MOU
remains
unquestionable and the parties have acted
upon freely in the pursuit of Article 21 of
the Constitution of India to live with
dignity - an amicable settlement deserves
8 All. Eti Tyagi Vs. Prince Tyagi
749
to be recognized in law with promptitude.
(Para - 6,7)

case of two parties - amicably settled their
matrimonial dispute through 'Memorandum of
Understanding' - chosen to part ways in a
situation where marital relationship had turned
completely irretrievable - parties acted upon the
MOU - parties - both educated and employed.
(Para -5)

HELD:-In the peculiar circumstances of the
case, the Family Court's order has been set
aside and the matter is remitted for a fresh
decision. Remaining six months waived and
application 12-C allowed. Family Court is
directed to finalize proceedings under Section
13-B within two weeks. (Para - 8)

First appeal disposed of. (E-7)

List of Cases cited:-

1. Shilpa Sailesh Vs Varun Shreenivasan, 2023
Live Law (SC) 375

2. Amit Kumar Vs Suman Beniwal , 2021 SCC
Online 1270

3. Naveen Kohli Vs Neelu Kohli, (2006) 4 SCC
558

(Delivered by Hon'ble Attau Rahman
Masoodi, J. & Hon'ble Om Prakash
Shukla, J.)

1. Shri Vishwakant Srivastava,
Advocate, has filed his Vakalatnama on
behalf of respondent, which is taken on
record.

2. Heard learned Counsel for the
appellant and learned Counsel for the
respondent.

3. This appeal filed under Section
19(1) of Family Court Act, 1984 has arisen
out
of
the
judgement/order
dated
27.07.2013 passed by Family Court in
Family Dispute No.1524 of 2023 whereby
the first motion of the parties under Section
13-B of Hindu Marriage Act for dissolution
of
marriage
initiated
on
29.04.2023
accompanied with an application i.e. C-12
for waiver of cooling-off period was
rejected.
The
proceedings
had
been
instituted after a period of more than one
year since when the parties lived separately
and had arrived at an amicable settlement
on 28.04.2023 to part ways due to
irretrievable breakdown of marriage.

4. Both the parties were present
before the Family Court and this fact is not
disputed. The learned Family Court having
regard to the statutory mandate was not
impressed by the argument-built on the
premise of judgment reported in 2023 Live
Law (SC) 375 : Shilpa Sailesh Vs. Varun
Shreenivasan for the reason that Hon'ble
the Apex Court in the said judgment had
merely dealt with the scope of Article
142(1) of the Constitution of India. The
Hon'ble Apex Court had granted the decree
of divorce in the light of powers under
Article 142(1) of the Constitution of India.
To this extent we do not find any illegality
in the order passed by the Family Court.

5. The case before us is a case of two
parties having amicably settled their
matrimonial dispute through 'Memorandum
of Understanding' (hereinafter referred to as
'MOU') on 28.04.2023. The parties had
chosen to part ways in a situation where
marital relationship had turned completely
irretrievable. The parties have also acted
upon the MOU. Both the parties are
educated and employed.

6. This Court may note that
legitimacy or otherwise of an MOU arrived
at between the parties out of their free will
is not open to judicial scrutiny except on
750 INDIAN LAW REPORTS ALLAHABAD SERIES
the ground of fraud. The very idea of
settlement through mediation or amicable
means runs and progresses through this
realm of philosophy. The Family Court in
the present case had of course not gone into
legality of MOU being undisputed, but had
rather refrained from exercising the power
by virtue of the bar under Section 13-B of
the Hindu Marriage Act. The mandate of
the
statute
remains
procedural.
The
substantive right of the two parties to settle
the conflict by an amicable settlement in a
case where the settlement so arrived is free,
the law must honour such a right. The
amicable means of settlement serve the
object of justice which the law fails to
deliver between the parties at times giving
rise to exceptional situations. This object of
all amicable settlements is bound to be
respected and recognized by the courts of
law in all such cases where the MOU
remains unquestionable and the parties
have acted upon freely in the pursuit of
Article 21 of the Constitution of India to
live with dignity.

7. The Hon'ble Apex Court in the case
of Amit Kumar Vs. Suman Beniwal
reported in 2021 SCC Online 1270 has
though observed that the institution of
marriage is to be saved by preventing hasty
dissolution of marriage, but at the same
time once the parties have separated and
separation has continued on account of the
irretrievable
breakdown,
in
such
a
situation the Apex Court taking the aid of
Naveen Kohli Vs. Neelu Kohli (2006) 4
SCC 558 has also opined otherwise. The
parties to a marriage if allowed to litigate
would also not achieve the purpose of law
and would thus damage the institution of
marriage in equal measure. It is for this
reason
that
an
amicable
settlement
deserves to be recognized in law with
promptitude.

8. Both the parties before us have
submitted that the MOU arrived at on
28.04.2023 has been acted upon and there
is no issue out of the wedlock. Both the
parties are educated and have parted ways
out of their free will and looking to the
irreparable situation which has made the
marriage
unworkable,
to
allow
the
proceedings linger on, in such a case,
would amount to defeat the purpose of
MOU and distance the parties from the
succour of justice. It is in the peculiar
circumstances of the case, we hereby set
aside the impugned order passed by the
Family Court and remit the matter for being
decided afresh. The period of six months
which remains short of about two months
now deserves to be waived off and the
application 12-C is accordingly allowed.
The Family Court is hereby directed to
finalize the proceedings under Section 13-B
not later than two weeks from the date a
certified copy of this order is filed.

9. With the aforesaid observation, the
instant appeal is disposed of.
----------
(2023) 8 ILRA 750
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.08.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 236 of 2002

M/s Krishak Bharti Co-Operative Ltd.
Kribhco Surat Gujrat ...Appellant
Versus
Union of India ...Respondent

Counsel for the Appellant:
Ashok Kumar Bhatnagar

Counsel for the Respondents: