Karnataka High Court
Shri. Shivakumar vs Smt. Jyoti on 13 December, 2018
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13 T H DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
M.F.A. No.100827/2016 (FC-DIS)
BETWEEN:
SHRI SHIVAKUMAR,
S/O MALLIKARJ UN HIREMATH,
AGE: 40 YEARS ,
OCC: GOVERNMEN T SERVANT,
R/O BEHIND BAND HKAM BHAVAN,
YAMUNA SOCIETY LATHUR,
MAHARASHTRA STATE-413512,
TODAY AT GADA G. ...A PPELLANT
(BY SMT.SEEMA S HIVA NAIK, ADVOCATE)
AND:
SMT.JOYTI
W/O SHIVAKUMAR HIREMATH,
AGE: 39, OCC: HOUSEHOLD,
R/O C/ O S .S .SHIV APPAYYANAMATH,
NEAR K.H.PATIL S TADIUM, MASARI,
GADAG - 582 101. ...RESPONDENT
(BY SRI ANANT HEGDE AND
SRI VISHWAN ATH HEGDE, ADV OCATES)
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THIS APPEAL IS FI LED UNDER S ECTI ON 19( 1) OF
THE FAMILY COURT ACT, 1984, AGAINST THE
JUDGMENT AND DECREE DATED 22.09.2015, PASS ED
IN M.C.N O.18/2013 ON THE FI LE OF THE PRINCIPA L
JUDGE FAMILY COURT , GADA G, DISMISSING THE
PETITION FILED UNDER SECTION 13( 1) ( ia) ( ib) OF
THE HINDU MARRI AGE A CT AND ETC.
THIS APPEA L COMING ON FOR ORDERS THIS
DAY, NAG ARATHNA J., DELIVERED THE F OLLOWING:
J U D G M E N T
This appeal was listed yesterday and has been adjourned to today so as to enable the parties to file a fresh joint petition under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act' for the sake of brevity).
2. Though this matter is listed for orders with the consent of learned counsel for the parties as well as the parties who are present in Court, it is taken up for final disposal.
3. Appellant is the husband while the respondent is the wife. Appellant had filed M.C.No.18/2013 before the Principal Judge Family Court at Gadag seeking the relief of dissolution of 3 marriage under Section 13(1) (ia) (ib) of the Act by decree of divorce. But by judgment dated 22.09.2015, the said petition was dismissed. Being aggrieved, the husband has preferred this appeal. During pendency of this appeal, there were negotiations held between the parties. Learned counsel for the respective parties submit that the parties have arrived at a negotiated settlement that they have decided to dissolve their marriage by mutual consent and that the petition under Section 13B of the Act has been filed. Learned counsel for the respective parties further submit that the said petition may be taken on record and the marriage between the parties may be dissolved by mutual consent by waiving off the period of six months under Section 13B (2) of the Act as sought for by the parties by filing a separate application in that regard and by placing reliance on a recent decision of the Hon'ble Supreme Court in the case of Amardeep Singh 4 V/s Harveen Kaur reported in AIR 2017 SC 4417.
4. Appellant and respondent are present in Court and they are identified by their respective counsel. They submit that they have arrived at a settlement of their mutual disputes and they have agreed to dissolve their marriage by mutual consent as per Section 13B of the Act. They further submit that they have arrived at a consensus on their own free volition without there being any force or coercion from any quarter. They further submit that they have signed the petition filed under Section 13B of the Act and that their marriage may be dissolved by mutual consent on the terms and conditions mentioned in the said petition by waiving the period of six months stipulated under sub-section (2) of Section 13B of the Act, in respect of which, a separate application has been filed by them jointly.
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5. The petition filed under Section 13B of the Act is taken on record and perused.
6. Petitioner and respondent have sought for divorce by mutual consent on the ground that there has been no compatibility between them and they have been living separately for a period of about six years. That they have not been able to live together, that they have mutually agreed that their marriage should be dissolved. On perusal of the petition filed under Section 13B of the Act, we find that the terms and conditions stipulated therein are lawful.
7. Further, the parties have filed an application under sub-section (2) of Section 13B of the Act seeking waiver of the period of six months as stipulated under the said sub-section. Learned counsel for the respective parties submit that the said period of six months as contemplated under 6 sub-section (2) of Section 13B of the Act may be waived as the parties have not resided together over six years. That on their own free volition they have decided to divorce by mutual consent and that the waiting period of six months would only prolong their agony.
8. In the circumstances, we are satisfied that the waiting period of six months has to be waived. In this regard, we place reliance on a recent judgment of Hon'ble Supreme Court in the case of Amardeep Singh V/s Harveen Kaur reported in AIR 2017 SC 4417, wherein it has been stated that the waiver of the waiting period is subject to discretion of the Court and on satisfaction of all contentions. Since we are satisfied that there ought to be waiver of the period of six months as stipulated under sub- section (2) of Section 13B of the Act, we allow the application filed by the parties jointly. In the 7 circumstances, marriage between appellant and respondent is dissolved by mutual consent as per the following terms:
12. 1st petitioner has agreed to pay Rs.29,00,000=00 (Rs.Twenty nine lacs only) towards full and final settlement of his liability towards alimony of 2nd petitioner and 2nd petitioner has agreed to receive the same. It is understood between the parties that said Amount is exclusive of the amount paid by first petitioner in favour of 2nd petitioner, in terms of interim stay order granted by this Hon'ble court in R.P.F.C. No.100001/2016. The 2 n d petitioner has received the maintenance in terms of the interim order granted in R.P.F.C. No.100001/2016. There shall be no other claims of any nature.
13. 1st petitioner has paid Rs.29,00,000=00 (Rs.Twenty nine lacs only) to 2 n d petitioner through demand draft bearing No.737341 dated 8 07.12.2018 drawn on State Bank of India Gadag Branch, in the name of 2 n d petitioner.
14. On encashement of said demand draft the liability of 1st petitioner towards 2 n d petitioner stands fully discharged and 2 n d petitioner shall not have any claim against 1 s t petitioner or towards his or his family's any of moveable and immoveable properties and service benefits payable to 1st petitioner.
15. Petitioner No.2 has withdrawn Criminal Miscellaneous 119/2013, filed before Family Court Gadag by filing memo of withdrawal in R.P.F.C. No.100001/2016.
16. Petitioner No.2 has withdrawn Criminal Miscellaneous No.359/2013 filed before the Hon'ble 1 s t Additional Civil Judge and J.M.F.C. I Gadag and Criminal Appeal No.4/2016 filed before the Additional District and Sessions Judge Gadag, by filing memo of 9 withdrawal in Criminal Revision Petition No.100150/2016.
17. 2 n d petitioner shall withdraw C.C.No.2225/2017 pending before J.M.F.C. Gadag and also Criminal Miscellaneous 136/2015 before Family Court Gadag.
18. Present appeal may kindly be allowed and decree be passed in terms of this petition and marriage of the petitioners solemnized on 14.04.2000 be dissolved by a decree of Divorce in the interest of justice.
19. Parties have agreed to bear their own cost.
9. In terms of the compromise, appellant herein has paid Demand Draft of Rs.29,00,000/- to the respondent bearing No.737341 dated 07.12.2018 drawn on State Bank of India, Gadag. The said Demand Draft is handed over to learned 10 counsel for respondent, who acknowledges receipt of the same.
10. At this stage, it is just and proper and in the interest of respondent to issue certain directions. Out of the said amount of Rs.29,00,000/-, a sum of Rs.9,00,000/- shall be deposited in the name of respondent and her mother-Smt. Dakshayani Shivappayyanmath in joint account in Postal Monthly Income Scheme (MIS scheme). The respondent and her mother are entitled to receive monthly interest on the said deposit. Balance amount of Rs.20,00,000/- shall be deposited in the name of respondent in any Nationalized Bank, for a period of three years. She shall be entitled to draw periodical interest on the said deposit. If the respondent seeks to close the fixed deposit prematurely, she shall seek permission of this Court to do so. The respondent 11 has consented to the aforesaid permission as they are in her interest.
Parties to bear their respective costs. In view disposal of the appeal, I.A.No.2/2016 for stay stands disposed off.
Sd/-
JUDGE Sd/-
JUDGE CLK