Karnataka High Court
Smt.N.Varshini vs Nil on 4 March, 2020
Bench: B.V.Nagarathna, Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 04TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A. No.2111/2020 (FC)
BETWEEN:
1. SMT. N. VARSHINI
W/O. N. KUSHAL,
D/O. D. NAGARATHNA AND LATE N. PRAKASH.
HINDU, AGED ABOUT 23 YEARS,
WORKING AS STAFF NURSE,
R/AT NO.2392, ROJIPURA,
DODDABALLAPURA TOWN,
BANGALORE RURAL DISTRICT - 561 203.
2. SRI KUSHAL .N
S/O. NATARAJ .S
HINDU, AGED ABOUT 32 YEARS,
R/AT E 80-56,
TALAKAVERI LAYOUT,
AMRUTHAHALLI,
BENGALURU - 560 092. ... APPELLANTS
(BY SRI MURTHY K., ADVOCATE)
AND:
NIL ... RESPONDENT
*****
THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, PLEASED TO SET ASIDE THE JUDGMENT
PASSED IN M.C.NO.89/2018 PASSED BY THE V ADDITIONAL
PRINCIPAL FAMILY JUDGE, BENGALORE, DATED 30-11-2019
AND ALLOW THE PETITION AS PRAYED UNDER SECTION 13-B
OF HINDU MARRIAGE ACT IN M.C.NO.89/2018 BY ALLOWING
THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., MADE THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel for the appellant and in the absence of there being any respondent, it is heard finally.
2. This appeal is filed by both husband and wife being aggrieved by the dismissal of their petition filed under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for the sake of brevity).
3. Briefly stated the facts are that, the wife had filed a petition under Section 13(1)(ia) of the Act seeking dissolution of marriage by a decree of divorce. During the pendency of the said petition, the parties negotiated and decided to file a petition under Section 13B(1) of the Act and the same was taken on record by the Court of V Additional Principal Judge, Family Court at Bengaluru. In fact, the evidence was recorded in the said petition inasmuch as both husband and wife filed their examination-in-chief by way of an affidavit. Obviously, there was no cross-examination let-in by the other party. They sought for a decree of divorce by mutual consent. -: 3 :- However, the Family Court has dismissed the petition filed by them under Section 13B of the Act and also dismissed the petition filed by the wife under Section 13(1)(ia) of the Act. As a result, being aggrieved, the husband and wife have filed this appeal jointly.
4. We have heard learned counsel for the appellants, who are present before the Court.
5. Appellants' counsel contended that the petition filed under Section 13-B(1) of the Act was taken on record. All that was necessary to be seen as to whether the stipulations contained under Section 13B of the Act were complied with or not. He submitted that the parties were married on 22/08/2016 and a divorce petition in M.C.No.89/2018 was initially filed by the wife under Section 13(1)(ia) of the Act. During the pendency of the petition, they both jointly filed a petition under Section 13B(1) of the Act stating that they could not reside together and there was no possibility of reconciliation between the parties and that they are separated for more than a year. Hence, permission was granted by the Family Court to amend the petition so as to consider the matter under Section 13B(1) of the Act.
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6. Further, learned counsel for the appellants contended that once the amendment was allowed, all that was necessary, was to consider the case under Section 13B(1) of the Act. That the parties had complied with the conditions mentioned under the said provisions. They had also sought for waiver of six months period stipulated under Section 13B(2) of the Act and the same ought to have been waived having regard to the dictum of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [(2017)8 SCC 746], instead the Family Court misdirected itself and dismissed the petition filed under Section 13B of the Act. He submitted that the appellants have decided to seek dissolution of their marriage by a decree of divorce by mutual consent. That the conditions stipulated under Section 13B(1) of the Act are complied with and that the cooling-off period may be waived in terms of the dictum of the Hon'ble Supreme Court and the appeal may be allowed by setting aside the impugned judgment and decree and by allowing the appeal filed under Section 13B of the Act. During the course of his submission, learned counsel for the appellants has furnished certified copy of the evidence recorded in the -: 5 :- case and has also drawn our attention to the copy of the petition filed under Section 13B of the Act.
7. We have perused the petition filed under Section 13B of the Act and the same is supported by a joint affidavit. The said petition was taken on record as permission was granted to amend the earlier petition filed by the wife under Section 13(1)(ia) of the Act. We have also perused the contention of the said petition and also perused the evidence let-in by the parties before the Family Court.
8. Having heard learned counsel for the respective parties and on perusal of the material on record as well as the evidence, the points that would arise for our consideration are:
(i) Whether the judgment and decree of the Family Court calls for any interference in this appeal?
(ii) What order?
9. The detailed narration of facts and contentions would not call for reiteration. The parties are present before this Court. When queried, they submitted that they indeed have filed a petition under Section 13B(1) of the Act seeking dissolution of their marriage by mutual consent as they are unable to reconcile their differences -: 6 :- and have not lived together for more than one year and that they are residing separately from November 2016. They further stated that they have decided to end their marriage by a decree of divorce by mutual consent on their own free volition without there being any coercion or undue influence from any side. They further state that the petition filed by them under Section 13B(1) of the Act may be allowed and that the six months period stipulated under Section 13B(2) of the Act may be waived as the trial Court had served the said period.
10. We have perused the evidence by way of an affidavit filed by the parties, wherein it has been stated that the parties have not been able to live together and that they have been separated for more than one year and that divorce may be granted by dissolving their marriage by mutual consent. When the Family Court had recorded the said evidence, which had been tendered by way of affidavit, it was the duty of the Family Court to consider whether the petition filed by the parties was in terms of the evidence or in terms of the petition filed under Section 13B(1) of the Act. Instead the Family Court has stated that the evidence of the parties is not acceptable and that no exigent circumstances are established to say that the -: 7 :- parties are entitled for divorce as there is no evidence in support of their case. Further, the Family Court has stated that there are no other witnesses supported the parties who sought for divorce by mutual consent and therefore, adverse inference could be drawn against them and on appreciation of the evidence on record the Family Court has concluded that there is no justifiable ground to dissolve the marriage between the parties by mutual consent. We find that the entire approach of the Family Court is erroneous. This is not a case where divorce decree was sought on the basis of allegations. What had to be considered was, whether the stipulations mentioned in Section 13B(1) were complied with or not and the same were complied with, in the instant case as the parties were separated for more than one year and there was no possibility of a reconciliation between the parties so as to co-habit together. In the circumstances, we find that it is a fit case where a decree for dissolution of the marriage by divorce by mutual consent ought to have been given by the Family Court.
11. For the aforesaid reasons, the judgment and decree of the Family Court is set aside. The petition filed by the appellants under Section 13B of the Act is allowed -: 8 :- and as the Family Court on itself allowed the plea made under Section 13B of the Act. We find that having regard to the aforesaid dictum of the Hon'ble Supreme Court and bearing in mind the facts of the present case, the plea under Section 13B(2) is also be allowed.
12. In the circumstances, the appeal is allowed. The marriage between the parties solemnized on 22/08/2016 at Sri Kalika Durgaparameshwari Temple, Vidyaranyapura, Bengaluru City, is dissolved by mutual consent. The parties shall have no further claim against each other.
Sd/-
JUDGE Sd/-
JUDGE S*