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Judgment
(Per Sandesh D. Patil, J.)
Heard learned Counsel for the parties
Rule. Rule is made returnable forthwith with consent of both the parties and the present Family Court Appeal is taken up for final disposal.
The Appellant has filed the present Family Court Appeal being aggrieved and dissatisfied with the Judgment, Order and Decree dated 24th May, 2017, passed by the learned Judge, Family Court at Bandra, Mumbai in proceedings bearing No. A-1332 of 2010, whereby the Petition of the Respondent/Husband seeking divorce was dismissed and the Counter claim filed by the Appellant/wife for restitution of conjugal right was partly decreed by the Court.
The aforesaid matter was admitted on 20/03/2019 by this Court
During pendency of the present Family Court Appeal, the parties tried to explore the possibility settlement and accordingly the matter was kept in Chambers from time to time. The parties finally amicably settled the dispute and accordingly are filing the Consent Terms. The same are taken on record and marked as ‘X’ for identification. The contents of the said Consent Terms are reproduced as under :-
Consent Terms
“1.The Hon’ble Family Court Mumbai at Bandra has passed the Judgment and Order dated 24/5/2017 thereby dismissing the Petition No. A-1332 of 2010 filed by the Respondent/husband seeking divorce and has allowed the counter claim filed by the Appellant/wife for restitution of conjugal rights. The Trial Court has interalia directed the Respondent/husband to continue to pay the Appellant/wife a monthly maintenance at the rate of Rs.25,000/-from 24/5/2017 till they resume co-habitation.
2.The Respondent/Husband had preferred a FCA 183/2017 challenging the order of Restoration of Conjugal Rights and Quantum of Maintenance and was seeking a Decree of Divorce. however the Respondent/Husband has unconditionally withdrawn the same on 4/8/2023.
3.The Appellant/wife has preferred aforesaid FCA No. 196 of 2017 and is seeking enhancement of Maintenance amount till the Respondent/husband resumes cohabitation with her.
4.After marriage, the Appellant and Respondent started residing at 43/1298 MIG Adarsh Nagar CHS Ltd., 1st Floor, Pump House Road, Opp. D. Y. Patil Int'l School, Near Worli Village Bus Depot, Worli, Mumbai-30. (hereinafter "the said flat"). At that point of time the said flat was exclusively owned by the Respondent/Husband.
5.After lot of efforts from this Hon'ble Court as well as counsels of the respective parties, Appellant/wife and Respondent/husband who are getting along well, decided to cohabit and have accordingly started to do so since 4th December 2025. As the mother of the Respondent/husband who currently stays in the said flat along with the Respondent/husband, does not want to stay with the appellant/wife, the parties have agreed to cohabit at a leave and license premises.
6.The Appellant/wife and Respondent/husband hereby agree, declare, confirm, abide and undertake as under: -
a. Respondent/husband will take up a flat (herein after called as the licensed flat) in his name on leave and license basis around Worli, to be close to the Respondent/husband's mother and be able to take necessary care of his Super Senior Citizen mother aged about 84 years, after getting it approved by Applicant/wife for a period of 36 months with lock-in period of 12 months. Respondent/husband will secure payment of license fees for a period of 12 months, either by paying it in advance to the licensor or by creating a joint fixed deposit or depositing the same in joint account of the Applicant/wife and Respondent/husband. Applicant / wife and Respondent /husband will stay together in the licensed flat, at least for a period of 1 year. The said arrangement will continue till the Appellant/wife and Respondent/husband are staying together in a leave and license premises. The Appellant/wife and Respondent/husband shall abide by all the terms and conditions of the lease agreement(s) in respect of the Licensed flat, at all times.
b. If the Respondent/husband is not willing to continue cohabiting with the Applicant/wife or if parties mutually decide not to stay together, at any point of time, after a period of 1 year, there shall be judicial separation. In such a situation, the Respondent/husband undertakes to pay a sum of ₹1,50,00,000/- (Rupees One Crore Fifty Lakh only) to the Applicant wife. Out of the said sum, Respondent/husband undertakes to pay ₹50,00,000/- (Rupees Fifty Lakh only) to Applicant/wife as early as possible and in any case within a period of 12 weeks from date of separation. The Respondent/husband shall endeavor to pay the balance sum of 1 crore to the Applicant/wife within a period of 1 year from date of separation. The Respondent/husband undertakes to pay a month Rs. 75,000/- (Rupees Seventy Five Thousand only) paid thereafter shall not be deductible from the total amount of Rs. 1,50,00,000/-.
c. The Respondent/husband hereby gives solvent security for payment of sum of ₹1,50,00,000/- by creating a charge on the said house i.e. 43/1298 MIG Adarsh Nagar CHS Ltd., 1st Floor, Pump House Road, Opp. D. Y. Patil Int'l School, Near Worli Village Bus Depot, Worli, Mumbai-400 030 for which the mother and sisters of the Respondent/husband have filed separate undertakings. The same are annexed hereto at Annexure 'A Colly'.
d. If the Applicant/wife unilaterally refuses to co-habit with the Respondent/husband after a period of 1 year or anytime thereafter, the parties will file for divorce by mutual consent. In such a situation, the Applicant/wife shall not receive any maintenance and/or alimony and/or compensation, whatsoever, from the Respondent/husband, at any point of time.
e. That the care and concerns of the Respondent/husband's mother shall always remain a priority and the Applicant/Wife shall not interfere in or prevent the Respondent/husband's relationship with his family and friends at any time.
7.The parties hereto further record that in compliance of the agreement between them, as contained in paragraph 6(a) above, the Respondent states that:
(i)He has taken on Leave and License basis a residential premise at 2/29, 2nd floor, 'A' Adarsh Nagar CHS Ltd., Worli, Mumbai - 400030. The said Agreement is for a duration of 36 months with a lock-in period of 12 months. A copy of the duly registered agreement is annexed hereto as Annexure 'B'.
(ii)The monthly license fees under the above referred agreement is Rs. 67,000/- (Rupees Sixty Seven Thousand Only) per month. The Respondent has already paid the 1st month's compensation. The Respondent has also deposited with the Licensor a sum of Rs. 2,00,000/- (Rupees Two Lakh only), about 3 months rent. The Respondent has created a Fixed Deposit for 444 days, in the joint names of the parties with Central Bank of India, Prabhadevi Branch, Mumbai, for a sum of Rs. 5,50,000/- (Rupees Five Lakh. Fifty Thousand Only) towards the balance monthly license fees for 8 months. A copy of the said Fixed Deposit receipt is annexed as Annexure 'C'.
8.The Family Court Appeal No. 196 of 2017 be disposed off as per the present consent terms.
9.Liberty to apply."
The parties have also tendered the undertaking filed by one Mrs. Devhuti Harshad Thakkar, who is mother of the Respondent inter alia stating that she is the owner of the flat, bearing No.43/1298, MIG Adarsh Nagar CHS Ltd., 1st Floor, Pump House Road, Opp. D.Y. Patil Int'l School, Near Worli Village Bust Depot, Worli, Mumbai-400 030. She confirmed that a charge upto maximum Rs.1,50,00,000/- stands created upon execution of the Consent Terms. She further undertook and agreed that she would not create any third party interest in respect of the said flat. Similar undertakings are given by Mrs. Jharna Pranav Thanawala and Mrs. Prity Viral Shah, who are sisters of the Respondent. All the said undertakings form the part of the Consent Terms.
We have put a query to the parties, who are present in Court, as to whether they have agreed with the Consent Terms and whether they have understood the contents, to which they have replied in the affirmative. Mrs. Devhuti Harshad Thaker, Mrs. Jharna Pranav Thanawala and Mrs. Prity Viral Shah are present before the Court through VC. All the parties are identified by the learned Advocate appearing for the Appellant and the learned Advocate appearing for the Respondent. They all reiterated what is stated by them in their affidavits. We, therefore, dispose of the Family Court Appeal by passing the following Order.
: O R D E R :
The impugned Judgment and Order dated 24th May 2017, passed by the learned Judge, Family Court Room No.7, Mumbai in Petition No.A-1332 of 2019, is quashed and set aside
The Family Court Appeal No.196 of 2017, be disposed of in terms of the present Consent Terms, which shall form part and parcel of this Order.
The undertakings given by the respective parties in their Affidavits are accepted as undertakings to this Court.
Decree be drawn up in terms of the Consent Terms.
There shall be no order as to costs.
Rule is discharged and the Appeal is allowed.
In view of disposal of the Family Court Appeal, nothing survives for further consideration in Civil Application No.296 of 2017, and the same is also disposed of accordingly.
The parties to act on the authenticated copy of this Order.