Karnataka High Court
Smt S Sujata vs D P Sanjay Kumar on 11 March, 2020
Equivalent citations: AIR 2021 (NOC) 373 (KAR.), AIRONLINE 2020 KAR 2412, 2021 (1) AKR 843
Bench: B.V.Nagarathna, Pradeep Singh Yerur
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE Mrs. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE Mr. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL No.4023 OF 2018 (FC)
BETWEEN:
SMT. S. SUJATA
AGED ABOUT 39 YEARS
W/O.D.P. SANJAY KUMAR
D/O.DR. SHAVANTHAPPA
R/AT SHANKARAGATTA
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT ... APPELLANT
(BY SRI R.CHANDRANANNA, ADVOCATE)
AND:
D.P.SANJAY KUMAR
S/O.D.V.PRAPULLACHAND
AGED ABOUT 41 YEARS
R/AT NOORANI MASJID ROAD
KALIDASANAGAR
BASAVANAHALLI
CHIKKAMAGALURU CITY
CHIKKAMAGALURU DISTRICT- 77 101 ... RESPONDENT
(BY SRI K.R.SRINIVASAPPA, ADVOCATE)
*****
THIS APPEAL IS FILED UNDER SECTION 19 (1) OF THE
FAMILY COURTS ACT, 1984 PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 27.01.2018 MADE IN
M.C.NO.76/2017 BY THE COURT OF THE PRINCIPAL JUDGE,
FAMILY COURT AT CHIKKAMAGALURU AND ALLOW THE
PETITION FILED BY THE APPELLANT BY GRANTING A DECREE
-: 2 :-
OF DISSOLUTION OF MARRIAGE OF THE APPELLANT WITH THE
RESPONDENT SOLEMNIZED ON 13.03.2003.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is listed for orders. The appellant is the wife while the respondent is the husband.
2. The appellant-wife had filed MC.No.76/2017 on the file of the Principal Judge, Family Court, Chikkamagaluru under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for the sake of brevity). The said petition was not contested by the respondent-husband and he was placed ex parte by the trial Court. However, by judgment and decree dated 27.01.2018, the petition was dismissed by the trial Court. Being aggrieved, the wife is in appeal.
3. Learned counsel for the respective parties submit that during the pendency of this appeal, the parties have negotiated to end their dispute and they have decided to file a petition under Section 13B(1) of the Act seeking dissolution of their marriage by a decree of divorce by -: 3 :- mutual consent. They submit that a joint petition under the said petition has been filed supported by a joint affidavit.
4. Learned counsel for the respective parties further submit that the parties have filed an application under sub-Section(2) of Section 13B of the Act seeking waiver of six months period stipulated under the said provision and to grant dissolution of marriage by a decree of divorce by mutual consent. In this regard, they state that the parties have been separated for about five years time; that there is no possibility of any reconciliation between them and that they do not intend to cohabit together on account of incompatibility and hence, the said application may be allowed. In this regard, they place reliance on the judgment of Hon'ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur reported in (2017)8 SCC 746. Therefore, they submit in unison that this appeal may be disposed of in terms of what has been submitted above.
5. Parties are present before this Court. They have been identified by their respective counsel. When queried by this Court, they stated in unison that they have indeed -: 4 :- decided to dissolve their marriage by a decree of divorce by mutual consent on certain terms and conditions which are stated in the petition filed by them under Section 13B(1) of the Act. They stated that they have arrived at the said settlement and the said decision on their own free volition without there being any coercion or undue influence from any side. They further stated that the appeal may be disposed of in terms of the petition filed by them under Section 13B(1) of the Act by waiver of the time stipulation under sub-Section(2) of Section 13B of the Act.
6. In the circumstances, we have taken the petition filed by them under Section 13B(1) of the Act on record. We note that it is signed by the respective parties and their counsel. It is also supported by a joint affidavit. The petition reads as under:
"PETITION UNDER SEC.13-B(1) OF THE HINDU MARRIAGE ACT 1955:
The above named parties submit as follows:-
1. That the Appellant is the wife and the Respondent is her husband and their marriage was solemnized on 13-03-2003 at 'Shree Renukacharya Kalyana Mantapa' -: 5 :- Chickmagaluru as per Hindu Customs and Traditions. One son by name S. Thejus is born out of the above said Wed-lock and he is now aged about 15 years.
2. That after marriage the respondent took the Appellant to Bengaluru and in Bengaluru the Respondent found it difficult to maintain the family of the Respondent and the Appellant, as the Respondent was without any job and any means of livelihood. Thereafter the Appellant took the Respondent to Gujarat, as the sister of the Appellant was in Gujarat and the Respondent was provided with the job in a Punjabi Hotel as Manager. The Respondent did not work there also satisfactorily, on account of his lethargy and also bad habits.
3. That the Appellant has secured a Teacher job in H.D.Kote Taluk, Mysuru District and as such he sifted her residence from Chickmagaluru to H.D. Kote Town from where she used to go to her School. The Respondent was also living with the Appellant at H.D.Kote Town and thereafter he has kept away from the Company of the Appellant.
4. The Appellant submits that the Respondent did not turn-up at all pursuant to the legal notice got issued by the Appellant and under those circumstances the Appellant was constrained to file a Petition under Sec.13 (1) (ia) and (ib) of -: 6 :- the Hindu Marriage Act for dissolution of her marriage that took place with the Respondent on 13-03-2003, in the Family Court at Chickmagaluru. The Respondent, though duly served remained exparte. However, the Petition of the Appellant was dismissed on 27-01-2018. The Appellant has filed the above Appeal challenging the above said Order.
5. That both the parties submit that they have been living separately for the last more than five years, in the addresses mentioned in the cause-title of the above Appeal.
6. That both the parties have come to a clear and definite conclusion that their marital relationship has reached an irretrievable point and it is not possible for them to continue to live as husband and wife any more.
7. That both the parties have mutually agreed that the above said marriage shall be dissolved by a Decree of Divorce with immediate effect.
8. That since the Appellant is working and having steady and regular income, she undertakes to maintain herself and her son the above said Thejus without insisting any maintenance including permanent alimony from the Respondent.
9. That both the parties submit that having regard to the fact that they have been living separately for the last more than 4 to 5 years -: 7 :- and also of the clear view that it is not possible for them to live as husband and wife any more, it is just and necessary to grant a Decree of Divorce by dissolution of their marriage that took place on 13-03-2003.
10. That both the parties submit that the above intention of going for dissolution of their marriage is bonafide, sincere and also without any malafides and it is in the best interest of both the parties.
WHEREFORE it is prayed that this Hon'ble Court may be pleased to order for dissolution of the marriage of the Appellant with the Respondent that took place on 13-03-2003 at 'Shree Renukacharya Kalyana Mantapa' Chickmagaluru, with immediate effect, in the interest of justice.
Sd/- Sd/-
ADVOCATE FOR APPELLANT APPELLANT
Sd/- Sd/-
ADVOCATE FOR RESPONDENT RESPONDENT"
7. On perusal of the same, it is noted that the son, Thejus shall remain with the appellant and the appellant shall be responsible for him; that the parties have no claim whatsoever against each other.
8. The application filed under sub-Section(2) of Section 13B of the Act is taken on record. It is noted that -: 8 :- it is supported by a joint affidavit of the parties. On perusal of the same, it is noted that the parties have not resided together for the last five years that they intend to dissolve their marriage by a decree of divorce by mutual consent, that there is no possibility of the parties reconciling their difference so as to cohabit together. Therefore, they have sought waiver of a period of six months stipulated under sub-Section(2) of Section 13B of the Act. On perusal of the application, we find that the parties have made out a case for waiver of the period of six months stipulated under sub-Section(2) of Section 13B of the Act. Placing reliance on the judgment of the Supreme Court in the case of Amardeep Singh v. Harveen Kaur (supra), the application-IA.No.2/2020 filed by the parties under sub-
Section(2) of Section 13B of the Act is allowed.
9. We have perused and noted the contents of the petition filed under Section 13B(1) of the Act. On perusal of the same, we find that the terms mentioned therein are lawful. We also do not find any legal impediment to accept the same. In the circumstances, the petition filed under Section 13B(1) of the Act-IA.No.1/2020 is allowed. The marriage between the parties solemnized on 13.03.2003 at -: 9 :- Sri Rrenukacharya Kalyana Manatapa, Chickmagaluru, is dissolved by a decree of divorce by mutual consent.
The appeal is disposed of in the aforesaid terms. Registry to draw up a decree under Section 13B(1) of the Act.
Sd/-
JUDGE Sd/-
JUDGE LB