Karnataka High Court
Smt.Mangala W/O. Mutappa Talkal vs Sri.Muttappa S/O. Karyappa Talkal on 13 February, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
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IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 13 T H DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MFA NO.104674/2019 (FC)
BETWEEN:
SMT. MANGALA W/O. MU TAPPA TA LKAL,
AGE 22 Y EARS, OCC: HOUSEWIFE,
R/O. ADAVISOMAPUR @ BA TTUR,
TQ. SHIRAHATTI, DIST. GADAG-582101
....APPELLANT
(BY SHRI. S RINIVA S B. NAIK, ADVOCATE)
AND:
SRI. MU TTAPPA S/O. KARYAPPA TALKAL,
AGE 26 Y EARS, OCC: COOLIE,
R/O. ADAVISOMAPUR TANDA,
TQ. AND DIS T. GADAG-582101
...RESPONDENT
(BY SRI. CHANDRASHEKHAR R. HIREMATH, ADVOCA TE)
THIS MFA IS F ILED UNDER SECTION 19(1) OF THE
FAMILY COURT ACT, AGAINST THE JUDGMENT AND
DECREE DATED 09.09.2019 PASSED IN MATRIMONIAL
CASE NO.134/2019 ON THE FILE OF THE I AD DL.
PRINCIPAL FAMILY COURT, GADAG, DISMISSING THE
PETITION F ILED UNDER SECTIO N 13(1)(1a) OF THE
HINDU MARRIAGE ACT, 1955.
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THIS MFA COMING ON FOR ADMISSION THIS DAY,
K.N.PHANEENDRA , J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is listed for admission. The learned counsels and respective parties have appeared before the Court and submitted that the parties have arrived at a settlement. They have also agreed that their marriage may be dissolved by a decree of divorce by mutual consent. They have presented a compromise petition before this Court which virtually contains all the ingredients of Section 13B(1) of the Hindu Marriage Act (for brevity hereinafter referred to as 'the Act'). The parties have also filed their respective affidavits in support of their compromise petition in the nature of mutual consent divorce petition. It is seen from the records that the marriage between the parties taken place on 01.05.2018 and after the marriage they could not pull on the life with each other as :3: the matrimonial relationship broken irretrievably. The wife herself has filed a petition for grant of divorce under Section 13(1)(ia) of the Hindu Marriage Act. The same was dismissed by the Principal Family Court, Gadag by order dated 09.09.2019, against which the present appeal is preferred. It is specifically stated that, the relationship was not cordial with each other and they were actually residing separately for more than a year. There is no chance of reconciliation and in spite of best conciliation they could not able to pull on the life together. Therefore, both of them have come to an agreement that their marriage has to be dissolved so as to live happily parting with each other. The contents of the compromise petition filed by the parties are hereby extracted:
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"APPL ICAT ION UNDER ORDER 23 RULE 3 READ WITH SECT ION 151 OF CPC R/W. SECT ION 13(B) OF THE HINDU MARR IAGE ACT.
In these appe llant and responde nt jo in tly submits as under:
1. It is submitte d that, appe llant is wif e and respondent is hus band in the above appe al.
2. That, the appe llant be ing aggr ieved by the Judg ment and decree, dated 09/09/2019 passed by the I Add l. Pr incipal Family Cour t, Gad ag, in M.C.No.134/2019,. Dis miss ing the MC case has pref erred th is appe al.
3. It is submitte d that, appe llan t and respondent are husband and wif e, the ir relations hip with each o ther is no t cord ial, as such, bo th appe llant and respondent are liv ing separ ate ly s ince o ne ye ar, and the ir mar ital lif e is irrepar ably broken do wn. Theref ore, bo th the appe llan t and respondent are no t interes ted in le ad mar ital lif e with e ach o ther. And appellan t be ing wif e has agreed to g ive d iv orce to the respondent and re spondent has agre ed f or the same, and the ir marr iage d ated 1-5-2018 may be d isso lved.
4. It is submitted that, appe llan t has ag reed to g ive d ivorce to the respondent and the ir :5: marr iage d ated 1/5/2018 may be d issolved on f ollo wing ter ms and cond itions.
5. That the appe llan t and responden ts have agreed to withdr aw all the alleg atio ns ag ains t each o ther.
6. That the respondent (husband) has ag reed to pay per manen t alimony of Rs.1,40,000/- to appe llan t ( wif e) through D.D. No.594548 d ated 12/02/2020. The appe llan t wif e has agreed f or the s ame and she has acce pted the same. The or ig inal D.D. is handed over to the appe llant in the open Cour t.
7. Fur ther respondent husband has agreed to g ive 20 gr ams of gold chain to the appellan t wif e and s ame is acce pted by the appe llant.
8. Bo th the par ties hereby agree that, they don' t have any claims over each o ther.
9. The appellant has agreed that, she would relinquish her r ight in proper ties, and she would no t claim any r ight and share in the proper ties of respondent.
Wheref ore, it is mo t humbly pr ayed that, th is Hon'ble Cour t be ple ased to allo w the acco mpanying application and per mit the appe llan t and res pondent to co mpr o mise the matte r, and allo w the appe al and d issolve the :6: marr iage of appe llant and responden t dated 1-5- 2018 in the ends of jus tice and equity. "
2. Looking to the above said compromise petition it is clear that, the parties have agreed to withdraw all the mutual allegations made against each other in the divorce petition filed by them and they want to replace the said petition filed by the wife before the Trial Court with the present compromise petition which is in the nature of a mutual consent divorce petition under Section 13B of the Act. It is also seen that from the decision of the Apex Court, reported in (2017) 8 SCC 746 between Amardeep Singh Vs. Harveen Kaur, wherein it is said that, the parties have made out a case for waiving of the six months period as stipulated under sub-section (2) of Section 13B of the Act. Considering the nature of the case between the parties, the court has got power to :7: waive off six months waiting period and grant divorce. Therefore, it is clear from the above said decision that, if there is absolutely no chance of reconciliation and the marriage was irretrievably broken down and no purpose would be served in dismissing the divorce petition. It is also worth to be noted that, when the parties have decided to reside separately and they could not reconcile each other in spite of their best efforts and also the conciliation by the elders of the family and also by the Court. In that eventuality, it is always better to grant them divorce so as to enable them at least to live happily in their future life. Therefore, having regard to the fact that the parties have been residing separately for more than one and half year and they have no children and they have specifically stated that they have no claims against each other as they have agreed to the terms of the compromise petition. In our :8: opinion, it is a fit case where the Court can exercise its appellate jurisdiction by stepping into the shoes of the Trial Court itself, permitting the parties to replace their petition filed under Section 13(1)(ia) with that of a compromise petition filed under Section 13B of the Act in order to do justice to the parties and also to avoid future multiplicity of proceedings and complex the matter between the parties.
3. It is also worth to mention here that in a Judgment in MFA No.2169/2014 (FC) between Sri. Nagamadhu S/o. Puttamad Shetty Vs. Smt. Vasantha, the Principal Bench vide orders dated 17.12.2019 by invoking the appellate jurisdiction has granted decree of divorce, though the petition was not filed before the Trial Court under Section 13B of the Act, by virtually substituting the compromise petition under Section 13(B) of the :9: Hindu Marriage Act to that of the petition filed by the parties before the Trial Court under Section 13(1)(i)(a) of the Hindu Marriage Act. Here also in this case the same principle can be applied and decree of divorce can be granted.
4. The wife who is present before the Court has received a Demand Draft for a sum of Rs.1,40,000/- and also one gold chain weighing 20 grams which is given by the husband-respondent herein and they have agreed for the compromise.
5. Therefore, the following order is passed:
ORDER The Judgment and decree of I Addl. Principal Family Court, at Gadag in MC.No.134/2019 dated 09.09.2019 is hereby allowed treating the petition filed before the Trial Court as one under Section 13B(1) and in view of the compromise between the parties, the : 10 : marriage between the parties solemnized on 01.05.2018 is hereby dissolved by means of granting decree of divorce by mutual consent.
Accordingly, the appeal is disposed off.
SD/-
JUDGE SD/-
JUDGE *Svh/-