Karnataka High Court
Smt Mamatha B C vs Subhash @ Subhashandra on 23 July, 2021
Bench: B.V.Nagarathna, Hanchate Sanjeevkumar
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A. No.7818/2016 [FC]
C/w.
M.F.A. No.2704/2018 [FC]
IN M.F.A. No.7818/2016
BETWEEN:
SMT. MAMATHA .B.C
W/O. SUBHASH @ SUBHASHANDRA GANIGERA,
AGED ABOUT 29 YEARS,
R/AT NO.5, BASAVESHWARA NILAYA,
GOPALAPPA LAYOUT,
PAPIREDDY PALYA,
NAGARABHAVI 2ND STAGE,
BANGALORE - 560 072. ... APPELLANT
(BY SRI. B.B. BALLARI, ADVOCATE)
AND:
SUBHASH @ SUBHASHANDRA GANIGERA,
S/O. RAMANNA GANEGERA,
AGED ABOUT 42 YEARS,
R/O. BADARADINNI,
BILAGI TALUK,
BAGALKOT DISTRICT - 587 116. ... RESPONDENT
(BY SRI. PRAKASH SALMANI, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, 1984, AGAINST THE JUDGMENT AND DECREE
DATED 30.07.2016 PASSED IN M.C.NO.4636/2012 ON THE FILE
OF THE V ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
-: 2 :-
BENGALURU, DISMISSING THE PETITION FILED UNDER
SECTION 9 OF THE HINDU MARRIAGE ACT, 1955.
IN M.F.A. No.2704/2018
BETWEEN:
SRI. SUBHASH @ SUBHASHCHANDRA GANEGERA
S/O. RAMANNA GANEGERA,
AGED ABOUT 44 YEARS,
R/AT BADARADINNI,
BILAGI TALUK,
BAGALAKOTE DISTRICT - 587 116. ... APPELLANT
(BY SRI. PRAKASH SALMANI, ADVOCATE)
AND:
SMT. MAMATHA .B.C
SRI. SUBHASH @ SUBHASHCHANDRA GANEGERA
AGED ABOUT 31 YEARS,
R/AT NO.5, BASAVESHWARA NILAYA,
GOPALAPPA LAYOUT, PAPIREDDY PALYA,
NAGARABHAVI 2ND STAGE,
BENGALURU - 560 072. ... RESPONDENT
(BY SRI. B.B. BALLARI, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURT ACT, 1984, AGAINST THE JUDGMENT AND
DECREE DATED 30.07.2016 PASSED ON M.C.NO.4362/2013 ON
THE FILE OF THE V ADDITIONAL PRINCIPAL JUDGE, FAMILY
COURT, BENGALURU, DISMISSING THE PETITION FILED
UNDER SECTION 13(1)(ib) OF THE HINDU MARRIAGE ACT,
1955.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, learned counsel for the respective parties in the presence -: 3 :- of the parties submitted that the parties have agreed to dissolve their marriage by a decree of divorce by mutual consent by filing a petition under Section 13B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for the sake of brevity) and application under Section 13B(2) of the said Act seeking waiver of the cooling period of six months under the said Act.
2. Learned counsel for the respective parties submitted that the said petition and application may be allowed and these appeals may be disposed of accordingly.
3. M.F.A.No.7818/2016 is filed by the wife assailing the judgment and decree dated 30/07/2016, passed by the V Additional Principal Judge, Family Court at Bengaluru, in M.C.No.4636/2012, seeking restitution of conjugal rights under Section 9 of the Act. Being aggrieved by the dismissal of the said petition, wife has preferred this appeal.
M.F.A.No.2704/2018 is filed by the husband being aggrieved by the dismissal of his petition in M.C.No,4362/2013 filed under Section 13(1)(ib) of the Act seeking dissolution of marriage solemnized between the parties on 25/05/1997 at Badaradinni Village, Bilagi Taluk, -: 4 :- Bagalkot District, by a common judgment passed along with M.C.No.4636/2012.
We have heard Sri B.B. Ballari, learned counsel for the wife and Sri Prakash Salmani, learned counsel for the husband in these appeals.
4. As stated earlier, during the pendency of these appeals, the parties have negotiated a settlement and have resolved to set at naught the disputes between them. They have also resolved to seek dissolution of their marriage by a decree of divorce by mutual consent. Therefore, the petition under Section 13B(1) and the application under Section 13B(2) of the Act has been filed.
5. The parties are present before the Court. They have been identified by their respective counsel.
6. When queried by this Court, they stated that they have, indeed, agreed to seek dissolution of their marriage by a decree of divorce by mutual consent. That they have come to such an agreement on their own free volition without there being any coercion or undue influence from any side. They further stated that the petition filed by them under Section 13B(1) and the -: 5 :- application filed by them under Section 13B(2) of the Act may be allowed.
7. The petition filed by the parties under Section 13B(1) of the Act is taken on record and perused. The contents of the petition read as under:
"MEMORANDUM OF PETITION UNDER SEC. 13(B)(1) OF THE HINDU MARRIAGE ACT, 1955 The petitioners named above most respectfully submit before this Hon'ble Court as follows:
1. The address of the petitioner for the purpose of service of process, summons, notices etc from this Hon'ble Court is shown in the cause title, the both the petitioners may also be served through their counsels the first petitioner may be served to Sri.Prakash Salmani, Advocate, No.89/3, Sree Complex, Avenue Road, Bengaluru - 560 002.
2. It is submit that the petitioners are husband and wife and are belong to Hindu Religion and governed by Hindu laws as well as the Hindu Marriage Act. The marriage between the petitioners was performed on 25.05.1997 at Badaradinni Village, Bilagi Taluk, Bagalkot District, as per Hindu Customary Rites and practices. The marriage between the petitioners was an arranged marriage.
3. It is submitted that thereafter the first petitioner and the second petitioner developed serious differences, difference of opinions and severe misunderstandings between them.
Many panchayats and reconciliations were failed due to severe misunderstandings between them and incompatibility, they could not lead their life as husband and wife, hence, -: 6 :- both are staying separately since from 2008, the 2nd Petitioner wife left the resident of the husband/1st Petitioner. The second petitioner and elders of the family tried maximum to unite them. But all in went vein. The husband, second petitioner, tried his level best to bring back his wife to his residence, but could not succeed due to severe misunderstanding between them and also they developed enemity between each other. The petitioners have no issues due to their wedlock.
4. It is submitted that by efforts made by the elders, well wishers and common friends of the both side in reuniting the petitioners then was failed.
5. It is submitted that due to the intervention of well wishers and elders of the petitioners family, the petitioners and family members of the petitioners came to the conclusion to settle the matter amicably and decided to file the above case for mutual divorce. There is no coercion or fraud or collusion or force in filing the above case by the petitioners.
6. It is submitted that there is no other way except the file the above petition to the petitioners. There are no chances to leave together since there are severe misunderstandings between husband and wife.
7. It is submitted that both the petitioners in this petition shall not claim, claims of any sought against each other in any manner.
Wherefore, the petitioners most respectfully pray that this Hon'ble Court be pleased to pass a judgment and decree dissolving their marriage held on 25.05.1997 at Badaradinni Village, Bilagi Taluk, Bagalkot District, between petitioners by granting the decree of divorce and to grant the petitioners such other relief as this Court deems fit in the -: 7 :- circumstances of the above case, in the interest of justice and equity.
Sd/-
Petitioner No.1 Sd/-
Petitioner No.2 Sd/-
Advocate for petitioners 1 & 2.
VERIFICATION
We, Subhash @ Subhaschandra
Ganeger, and Smt.Mamatha .B.C., the 1st and 2nd petitioners named above do hereby on solemn affirmation state that whatever is stated in paras 1 to 7 are true to the best of our knowledge and belief and the same have been prepared as per our instructions.
Bengaluru Sd/-
Date: 22/07/2021 Petitioner No.1
Sd/-
Petitioner No.2"
The said petition is supported by a joint affidavit of the parties. The contents of the affidavit are extracted as under:
"JOINT AFFIDAVIT WE (1) Sri Subhash @ Subhash Chandra Ganeger, S/o Ramanna Genegera, aged about 47 years, Badaradinni, Bilagi Taluk, Bagalkot District - 587 116 (2) Smt. Mamatha B.C., W/o. Subhash @ Subhash Chandra Ganeger, aged about 35 years, R/at No.5, Basaveshwara -: 8 :- Nilaya, Gopalappa Layout, Papireddy Palya, Nagarabhavi 2nd Stage, Bangalore - 560 072 today at Bangalore do hereby solemnly affirm and state on oath as follows:
1. We state that we are the petitioners in the above case and we know the facts and circumstance in the case. Hence we are swearing this joint affidavit.
2. We state that we have filed above case today and we are staying separated more than 13 years (I.e., from 2008 till today) from the date of separation both the petitioners are living separately, hence this application for waving of cooling period have files the petition seeking for mutual consent divorce.
3. We petitioners submits that since the marriage is irrevocably broken down and both of them have no intention living together as the marriage cannot be co-habituated and the hence they have filed the above petition.
4. We the petitioners submits that the statutory period of 6 months i.e., cooling period may be dispensed off as marriage cannot be repaired and they have no intension of living together anymore and both of them are have come to understanding that they cannot live together and hence I have filed the above petition seeking for mutual consent divorce.
5. We the petitioners submits that the 6 months period may be dispensed up article of 142 of constitution and inherited power of court and 6 months period is not dispensed the petitioners will suffer mentally and their life cannot be moved in further with reference to citation 2017(8) SCC 746.
WHEREFORE: we pray that this Hon'ble court may be pleased to allow the accompanying -: 9 :- application, in the interest of justice and equity.
Identified by me
Sd/- Sd/-
Advocate Deponents
Bangalore sworn before me
Date: 23/07/2021"
8. The parties have also filed an application under Section 13B(2) of the Act.
9. Learned counsel for the respective parties as well as the parties themselves stated that they have been living separately for nearly thirteen years i.e., from the year 2008 till date. That there is no chance of cohabitation or reconciliation of their disputes and relationship. Therefore, the period of six months stipulated under Section 13B(2) of the Act may be waived.
10. We have perused the application along with the joint affidavit filed in support of the said application.
11. Having regard to the fact that the parties have been living separately for over thirteen years and there being no possibility of reconciliation or cohabitation, the -: 10 :- said application is allowed by placing reliance on the decision of the Hon'ble Supreme court in the case of Amardeep Singh vs. Harveen Kaur [(2017)8 SCC 746]. We have also noted the fact that the parties have been living separately since the year 2008 and they have no issues out of their said wedlock. They have stated that there is no possibility of reconciliation between them. That they do not intend to reside together as husband and wife. Hence, they have sought for dissolution of their marriage by a decree of divorce by mutual consent.
12. We have perused the contents of the petition filed by them under Section 13B(1) of the Act.
13. On perusal of the same, we find that the terms of settlement are lawful. There is no legal impediment in accepting the same. Therefore, we accept the terms of settlement arrived at between the parties.
14. Consequently, the marriage solemnized between the parties on 25/05/1997 at Badaradinni Village, Bilagi Taluk, Bagalkot District, is dissolved by a decree of divorce by mutual consent. The petition filed by them under Section 13B(1) of the Act and the application under Section 13B(2) are allowed. Consequently, the common -: 11 :- judgment and decree passed in M.C.No.4636/2012 and M.C.No.4362/2013 by the V Additional Principal Judge, Family Court at Bengaluru, dated 30/07/2016 is set aside.
The appeals are disposed of in the aforesaid terms. No costs.
Registry to draw up a decree in the aforesaid terms.
Sd/-
JUDGE Sd/-
JUDGE S*