Karnataka High Court
Sri.Suresh vs Smt.Sudharani on 2 March, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 200634 of 2018
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 2ND DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCL. FIRST APPEAL NO. 200634 OF 2018 (FC-DIV)
BETWEEN:
SRI SURESH
S/O YAMNAPPA CHIKKALAKI
AGE: 24 YRS., OCC: NIL,
R/O KATHARAL VILLAGE, TQ & DIST: VIJAYAPUR
...APPELLANT
(BY SMT. HEMA L. KULKARNI, ADVOCATE)
AND:
SMT.SUDHARANI
Digitally signed D/O REVANASIDDA BIRADAR, AGE: 19 YRS,
by SACHIN
Location: High OCC: HOUSEHOLD, NOW AT R/O BEVARGI VILLAGE
Court of
Karnataka TQ: JATH, DIST: SANGLI, STATE MAHARASHTRA-416416.
...RESPONDENT
(BY SRI. PUNIT MARKAL, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, 1984, PRAYING TO ALLOW THE APPEAL BY
SETTING ASIDE THE JUDGMENT DATED 01.03.2018 PASSED
BY THE PRL. JUDGE, FAMILY COURT, VIJAYAPUR IN
M.C.NO.61/2016 AND CONSEQUENTLY TO ALLOW THE
APPEAL BY GRANTING DECREE OF DIVORCE, IN THE
INTEREST OF JUSTICE AND EQUITY.
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MFA No. 200634 of 2018
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant and respondent are present. Sri. Punith Markal, learned counsel files Vakalath for the respondent.
2. Heard the learned counsel for the appellant and the respondent.
3. The compromise petition filed under Section 13B of the Hindu Marriage Act, 1955 stating that the appellant/respondent being petitioner/respondent before the trial court have compromised and with consent they are seeking dissolution of their marriage solemnized on 07.11.2003.
4. The learned counsel for the parties submit that they have filed an application for waiving of cooling period as stipulated under Section 13B (2) of the Hindu Marriage Act, 1955. The same is taken on record. -3- MFA No. 200634 of 2018
5. The learned counsel for the parties have also filed the compromise petition under Section 13B of the Hindu Marriage Act, 1955, which reads as hereunder:
"1. The marriage between the appellant/ petitioner no.1 and the respondent/petitioner no.2 was solemnized on 07.11.2003 as per customs and traditions prevailing in their community. The parties profess Hindu religion and are domiciled in India.
2. Being aggrieved by the order passed by the Family Court, the appellant/petitioner no.1 has preferred the said MFA before this Hon'ble court. During the pendency of appeal, the appellant/ petitioner no.1 and the respondent/petitioner no.2 have entered into compromise and settled their disputes.
3. The parties lived together for some days, but marriage was not consumated and there were no issues out of the wedlock and during the period of wedlock there arose some issues/disputes for which they could not cohabit and live together as husband and wife. Thus on account of -4- MFA No. 200634 of 2018 incompatibility of temperament they could not live together as husband and wife. Therefore, they started living separately since 2016.
4. It is submitted that both the parties started living separately since 2016 and the marriage has been irretrievably broken down and there was no chance of reunion or settlement.
5. That due to intervention of villagers, family friends and relatives and dispute between the parties has been resolved and they have agreed to dissolve their marriage by mutual consent on the following terms and conditions:
i) The respondent/petitioner no.2 shall not claim any maintenance or residential right from the appellant/petitioner no.1 and further the respondent/petitioner no.2 after filing the petition will not return to the appellant's/first petitioner's residence for cohabitation.
ii) That the parties hereby declare and confirm that they have no right in movable or immovable -5- MFA No. 200634 of 2018 properties of each other. That both the parties have waived their rights in immovable properties of each other for present and future if any permanently and more particularly all the right in the immovable properties.
iii) The respondent/petitioner no.2 shall not claim any maintenance against the appellant/ petitioner no.1.
iv) The parties hereby declare, agree and undertake that they shall hereafter be entitled to live apart from each other wherever they choose and agreed not to interfere in the personal life of each other in any manner.
v) Both the parties declare, confirm and agree that they will not file any civil and/or criminal case/suit/proceedings against each other or their family members in any court of law with regard to aforesaid marriage and divorce.-6-
MFA No. 200634 of 2018
6. It is submitted that the parties have entered into the compromise petition with their free will, wish, consent and without any coercion.
Both the parties pray that this Hon'ble court may be pleased to set aside the judgment and decree in M.C.No.61/2016 passed by the Prl. Judge, Family Court, Vijayapura, and to dissolve the marriage of the appellant/petitioner no.1 and respondent/petitioner no.2 solemnized on 07.01.2003 and grant decree of divorce under Section 13B of the Hindu Marriage Act, 1955 in the interest of justice.
The terms and conditions mentioned herein above be treated as part and parcel of the decree."
6. The contents of the compromise petition is read over and explained to the appellant/petitioner and the respondent in the language known to them and they admit the contents of the same.
7. In light of the present appeal being a continuation of proceedings and as the appellate court possesses all powers of -7- MFA No. 200634 of 2018 the trial court, the present petition under Section 13B is taken up for consideration and ordered.
8. Order XLI Rule 32 CPC, speaks what judgment may direct. Order XLI Rule 32 CPC, reads as hereunder:
"32. What judgment may direct - The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal. The Appellate Court may pass a decree or make an order accordingly."
9. In view of the provisions of Order XLI Rule 32 CPC, as the appellant and respondent in this appeal have agreed as to the form in which the compromise decree is going to be passed in this appeal, then this court very well pass a decree in terms of petition filed under Section 13B of the Hindu Marriage Act, 1955.
10. The application for waiving of the waiting period is allowed in light of the matter being pending since 2018. The -8- MFA No. 200634 of 2018 petition filed under Section 13B of the Hindu Marriage Act, 1955 is allowed and the marriage solemnized on 07.11.2003 is dissolved and decree of divorce is granted on the grounds of mutual consent. Decree to be drawn in terms of the settlement arrived at.
Sd/-
JUDGE Sd/-
JUDGE NP