Karnataka High Court
Sri.Manjunath A.T. vs Sheela M.N. @ Drakshayni on 13 September, 2019
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR
M.F.A. No.7542/2013 (FC)
BETWEEN:
SRI MANJUNATH A.T.,
S/O. A.S.THIMMASHETTI,
AGED ABOUT 30 YEARS,
OCC:STAFF NURSE,
R/O. No.1178,
OLD POST OFFICE ROAD,
YALAHANKA,
BANGALORE - 64.
... APPELLANT
(BY SRI GIRISH B. BALADARE, ADVOCATE)
AND:
SHEELA M.N. @ DRAKSHAYNI,
W/O. MAJUNATH A.T.,
AGED ABOUT 28 YEARS,
C/O. POST OFFICE,
BUS STAND OPPOSITE,
PIRIYAPATNA,
MYSORE - 570 001.
... RESPONDENT
(BY SRI RAHUL RAI K., ADVOCATE FOR
SRI SACHIN B.S., ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 19(1) OF THE FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED
16.10.2012 PASSED IN M.C.NO.368/2012 ON THE FILE OF
THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, DISMISSING THE PETITION FILED UNDER
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SECTION 13(1) (ia) & (ib) OF THE HINDU MARRIAGE ACT,
FOR DISSOLUTION OF MARRIAGE.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is listed for admission today. Learned counsel for the respective parties submit that during the pendency of this appeal, the parties have negotiated a settlement of their dispute and the parties have agreed to file a petition under Section 13B(1) of the Hindu Marriage Act, 1955. (hereinafter referred to as 'the Act' for the sake of brevity) so as to seek dissolution of their marriage and seek divorce by mutual consent on certain terms and conditions. They submit that this appeal may be disposed off accordingly.
2. It is noted that the appellant is the husband and the respondent is his wife. The appellant - husband had filed a petition in MC No.368/2012 before the II Additional Principal Judge, Family Court at Bangalore seeking divorce under Section 13B(1) (ia) & (ib) of the Act . By judgment and decree dated 16.10.2012, the said petition was dismissed. Being aggrieved by the same, the appellant (petitioner before family Court ) has preferred this appeal. -: 3 :-
3. The appellant and respondent are present before the Court. They are identified by their respective Advocates. They have filed a petition U/s 13B(1) of the Act seeking divorce by mutual consent and seeking dissolution of their marriage solemnized on 05.06.08 by decree of divorce by mutual consent.
4. When enquired by the Court, the parties stated that they have agreed to settle their marital dispute amicably by seeking dissolution of their marriage by divorce by mutual consent. Hence the petition under Section 13B(1) of the Act has been filed.
5. Learned counsel for the respective parties further state that the application under Section 13B (2) of the Act has been filed seeking waiver of six months' statutory period stipulated therein; that the application is supported by a joint affidavit of the parties and reasons have been stated as to why the period of six months period stipulated therein, may be waived. The learned counsel for the respective parties submit that the application may be allowed and the appeal may be disposed off by decree of divorce by mutual consent.
6. We have perused the application and contents of the affidavit. Section 13B (1) states that the petition for -: 4 :- dissolution of the marriage by decree of divorce by mutual consent may be presented on the ground that the parties have been living separately for a period of one year or more.; that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
7. In the instant case, the parties were married on 05.06.08 and they have been living separately for the last nine years; that a female child was born out of their wed lock who is presently in the custody of the respondent - wife. It is stated that on account of their incompatibility and mis- understanding, the parties are not able to reconcile their differences and they are not able to live together.
8. Section 13B(2) of the Act states that before a decree for divorce by mutual consent is passed, there must be a period of at least six months between the date of presentation of the petition under Section 13B(1) of the Act and passing of the decree. However, having regard to the latest dictum of the Hon'ble Supreme Court in the case of AMAR DEEP SINGH VS HARVEEN KAUR, AIR 2017 SC 4417 to the effect that the stipulation of six months period for divorce by mutual consent under Section 13B (2) of the Act can be relaxed in certain exceptional cases and it is held that is not a mandatory requirement.
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9. Having regard to the said dictum and bearing in mind the application filed under Section 13B(1) of the Act and on perusal of the joint affidavit filed by the parties, it is noted that the parties have stated the reasons as to why the six months period in passing decree of divorce should be waived. We are satisfied with the reasons assigned and accordingly, we allow the application filed Under Section 13B(2) of the Act.
10. The petition U/s 13B(1) of the Act is taken on record which is signed by respective parties and their counsel and accompanied by affidavits of respective parties. The same reads as under:-
" Joint petition on consent of both the parties as follows;
"1. The marriage between the appellant and Respondent was solemnized on 05-06-2008 as per the rituals of Hindus at Mudigere and out of their wed lock female child was born by name Thanu shetty, now she is aged about 10 years, due to the different opinion between the spouses they are unable to continue their matrimonial relationship, Hence husband/appellant herein filed the petition for seeking divorce before the II Additional Principal Judge Family court at Bangalore in M.C 368/2012. After adjudicating the matter, Family court dismissed the Divorce -: 6 :- petition filed by the Husband vide order dated 16-10-2012. Being aggrieved by the same the appellant herein preferred the above appeal before this Hon'ble court and during the pendency of the appeal matter was referred to mediation centre for settlement, and both the parties are arrived for the settlement and based on their settlement report was furnished by the Mediation center and as per the terms agreed upon themselves both the parties are willing to settle the dispute amicable as per the terms mentioned below.
2. It is submit that, both the parties agrees and consented for the dissolution of their marriage solemnized between them on 05-06- 2008 at Mudigere by decree of divorce by way of mutual consent without any coercion unduinfluence, in view of the above settlement the above appeal is liable to be allowed by grating the decree of divorce and Respondent is consented for the same.
3. The Female child born out their wedlock by name Thanu shetty is taken care by the Respondent/wife hereinafter and welfare of the child was taken care by the respondent/wife.
4. Sum of Rs.5,00,000/- (Five lacks only) by way of D.D bearing No 015003 dated 27-08-2019 drawn by the Chikkamagalur District co-operative -: 7 :- Central Bank Ltd chikkamagalur in the name of Thany shetty paid toady before this Hon'ble court in the presence of parties, towards the full and final settlement to the welfare and education of the child, hereinafter there is no claim by the Respondent/wife on behalf of the minor child and amount is received by the Respondent on behalf of minor child, and there is no monitory claims by the minor child and her mother hereinafter in any manner.
5. It agreed upon the appellant and the Respondent, that is husband and wife such that, there is not claim by each other in future and Respondent agreed to not to claim anything from the appellant hereinafter and agreed to live independently without any intervention by each other.
6. It is further sates that, at the time of mediation before the Mediation center, the appellant issued cheque for sum of Rs.1,000,00/- towards the partial settlement of agreed amount but the said cheque was dishonoured and 138 of NI act was initiated by the Respondent wife and same is pending for adjudication before the Senior Civil Judge at Belur in C.C No.98//2017, in view of payment of D.D for sum of Rs.5,000,00 lacks (Five Lacks) including the cheque amount of Rs.1,000,00/- (one Lack) which was paid after mediation towards partial settlement, due to -: 8 :- dishonour of the said cheque proceedings under 138 of NI act initiated by the Respondent/wife against her husband, in view of the payment of entire settled amount by way of D.D the 138 proceedings does not survive for consideration, hence the Respondent wife undertake to withdraw the above case with the period of two weeks from today by following necessary procedures without fail or any undue delay within the aforesaid period and Respondent agreed and undertake to do the same.
7. It is further submit that, both the parties are agreed for full and final settlement of our matrimonial dispute as per the terms and conditions indicated above with consent without any coercion, fraud or unduinfluence and we are undertake to obey the terms agreed upon herein after, without any violations.
Wherefore, this Hon'ble court may pleased to dissolve the marriage solemnized between the appellant and Respondent on 05-06-2008 by decree of divorce by mutual court and grant such other reliefs as per the terms agreed in the joint petition filed on behalf of the parties in the interest of justice and equity."
11. On perusal of the same, we find that the terms stated therein are lawful and that there is no legal -: 9 :- impediment for accepting the said settlement arrived at between the parties. Further, the parties have also stated that they shall abide by the terms as stated in the said petition.
12. Learned counsel for the appellant states that demand draft bearing No.015003 for a sum of Rs.5,00,000/- (Rupees five lakhs only) dated 27.8.2019 drawn on Chikamagalur District Co-operative Central Bank Ltd., in favour of Thanu shetty, (minor daughter of the respondent) is handed over to the respondent and the respondent acknowledges receipt of the same and she submits that the amount would be invested and utilized for the welfare of the minor child and same shall be deposited in a FD in any post office or nationalized banks and the interest earned therein shall be utilized for the benefit of the minor child. The principal amount shall be continued in FD until the child attains the majority.
13. The respondent does not have any further claim on the appellant and the appellant has also no further claim on the respondent. The respondent is not seeking any permanent alimony of maintenance for herself. The aforesaid payment shall not come in the way of minor child enforcing -: 10 :- her rights on her parents who are parties herein. Hence the following order.
ORDER In the circumstances, the petition filed under Section 13B(1) of the Act is allowed. The marriage of the parties solemnized on 5.6.08 at Mudugere is dissolved by decree of divorce by mutual consent. No costs.
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JUDGE Sd/-
JUDGE nm