Karnataka High Court
Sri Manjunath Kumar K P vs Smt Ashwini A T on 22 October, 2020
Bench: B.V.Nagarathna, N S Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
M.F.A. No.4297/2020 (FC)
BETWEEN:
SRI MANJUNATH KUMAR K.P.
S/O. LATE K. PAPANNA,
AGED ABOUT 44 YEARS,
R/AT NO.760, 2ND FLOOR,
2ND MAIN ROAD,
NEAR SHANKARNAG BUS STOP,
KAMALANAGAR,
BANGALORE - 79. ... APPELLANT
(BY SRI UMESH B.N., ADVOCATE (THROUGH V/C))
AND:
SMT. ASHWINI A.T.
AGED ABOUT 41 YEARS,
D/O. ASHOK TOGATAVEER,
W/O. MANJUNATH KUMAR K.P.
R/AT NO.101, FIRST FLOOR,
2ND BLOCK, 9TH MAIN, SIR M.V. NAGAR,
KALKERE MAIN ROAD,
R.M. NAGAR, BANGALORE - 560 016. ... RESPONDENT
(BY SMT. RADHA V. DODDAMANI, ADVOCATE (THROUGH V/C))
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
20.12.2019 PASSED IN M.C.No.3997/2013 ON THE FILE OF THE
V ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU,
DISMISSING THE PETITION FILED UNDER SECTION 13(1) (i-a)
OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the husband, being aggrieved by the dismissal of his petition in M.C.No.3997/2013 by judgment and decree dated 20/12/2019, by the V Additional Principal Judge, Family Court, Bengaluru.
2. The said petition was filed by the appellant/husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for the sake of brevity) seeking dissolution of his marriage with the respondent/wife, which had taken place on 14/02/2002 at Shiva Prabha Kalyana Mantapa, West of Chord Road, Bengaluru.
3. Today when the matter is listed for orders, learned counsel for the respective parties submitted that the parties have negotiated a settlement and they have decided to seek dissolution of their marriage by a decree of divorce by mutual consent. Therefore, they have filed a joint petition under Section 13B(2) of the Act incorporating certain terms and conditions and have sought substitution of the impugned judgment and decree by a judgment and decree of divorce by mutual consent. They further submitted that the parties have been living separately for -: 3 :- more than seven years. There is no possibility of any reconciliation in the matter and therefore, they have sought for waiver of the period of six months stipulated under Section 13B(2) of the Act by filing an application in that regard.
4. Learned counsel for the respective parties submitted that the appeal may be disposed of in terms of the petition as well as the application filed by the parties.
5. The parties are present in the office of Sri B.N. Umesh, learned counsel for the appellant. Learned counsel for the respondent, Smt. Radha V.Doddamani is also present in the office of the learned counsel for the appellant. The parties have been identified by their respective counsel.
6. When queried by this Court, they stated that they have, indeed, negotiated a settlement in the matter and they have decided to dissolve their marriage by a decree of divorce by mutual consent and therefore, a decree of divorce by mutual consent may be passed in this appeal. They further stated in the appeal that the appellant/husband would pay, in all, a sum of Rs.12.00 lakh, towards full and final settlement of permanent -: 4 :- alimony to the respondent/wife. That all litigations between the parties may be withdrawn wherever they are pending. That their son, Tarun, who is aged about fifteen years, shall remain in the sole custody of the respondent/wife and that they may workout mutually certain visitation rights for the appellant/husband. They also stated that since they have been residing separately since June 2013 and there is no possibility of reconciliation or cohabitation between the parties, the application filed by them for waiver of the period under Section 13B(2) of the Act may be allowed.
7. We have taken on record the petition filed under Section 13B(1) of the Act. We note that the same is signed by the respective parties and their counsel. The said petition is as under:
"UNDER SECTION 13-B (1) OF THE HINDU MARRIAGE ACT, 1955 THE PARTIES ABOVE NAMED HUMBLY SUBMIT AS FOLLOWS:
The Petitioner/Appellant and Respondent herein jointly states as hereunder:-
1. It is submitted that the marriage between petitioner/Appellant and the respondent was solemnized on 14.02.2002 at Shiva Prabha Kalynana Mantapa, West of Chord Road, Bengaluru according to Hindu Rites and Ritual.-: 5 :-
Out of the wedlock a male child master Tarun was born on 01.06.2004, now he is the age of 16 years.
2. The relationship between the Petitioner/Appellant started to deteriorate since September 2004, and since 03/10/2010 both started to live separately, a criminal case came to be registered against the Petitioner/Appellant in Crime No:218/2011 for offence punishable under Section 498A if IPC, which came to be ended vide acquittal order dated 03/09/2012. Subsequent to the said order again both the parties herein at the intervention of well wishers joined and started to live together. But as there was no compatibility between them, the relationship did not last for long time. And since June 2013 the Petitioner/Appellant and respondent again started to live separately until today.
And in the intervening period the petitioner/Appellant has filed a petition for Divorce under Section 13(1) (i-a) of Hindu Marriage act 1955. After contest the said Petition came to be dismissed vide Judgment and Decree dated 20.12.2019 in M.C.No.3997/2013 on the file of the Vth Additional Principal Judge Family Court at Bangalore. And against which the above appeal has been filed.
3. Several Panchayath were held and tried to pacify the difference and to reunite the parties herein, but the same has been went in vein, -: 6 :- so also the matter was referred to mediation before the Trial Court soon after filing of the Divorce petition in question which did not yield any favorable result of reunite, rather the parties went on contesting the Divorce petition as there was no chance of reunite.
4. It is submitted that since there is not even a slightest possibility of reunion and as the marriage between the parties herein has been irretrievable broken down beyond repair and there being no possibility of parties living together, the petition/Appellant and Respondent have mutually agreed and decided to get their marriage dissolved and to look for their independent prospects for their respective better life. It is therefore necessary in the interest of both the parties that the marriage between them be dissolved by a decree of divorce and which decision has been taken by them in the presence out of their free will and consent, without there being any coercion, fraud or inducement, so that they may be able to lead their lives independently.
5. The Appellant/Husband has agreed to pay a sum of Rs.12.00 (Twelve Lakhs) as full and final settlement of all her claims for maintenance/permanent alimony in the past, present and for the future.
6. The parties have no object to grant decree of divorce dissolving their marriage by mutual consent.
-: 7 :-7. The parties hereby state that they withdraw all the allegations made against each other in the pending proceedings and Divorce petition MC No.3997/2013. Both the parties hereby undertake not to interfere with each other's individual lives.
8. The respondent shall remain the sole custodian and guardian of the minor Son Mr.Tarun.
9. The Petitioner/Appellant further undertakes that he shall take care of his son's Educational expenses upon mutual consultation in relation financial aspects related to education expenses and future studies as per his financial status. And the Education expenses maybe deposited through the Respondent account with the bank details as herein below;
Bank : Axis Bank
Name : Ashwini Ashok Togataveer,
A/C No : 102010100291835,
IFSC Code: UTIB0003198
Banasawadi Branch, Bangalore - 560 043.
10. Both the parties have agreed to get closed/withdraw all the cases viz., Ex.No:52/2020 and Crl.Misc.No:168/2020 pending before the V Additional Family Court at Bangalore, and Crl.Mis.No:41/2020 pending before Metropolitan Magistrate Traffic Court-I, or any other cases pending before any other courts between the parties herein, in view of -: 8 :- this application for Mutual Consent Divorce, and both the parties have agreed to co- operate with each other for withdrawal of the pending cases, or either of the party can submit the certified copy of this Application along with the order passed by this Hon'ble Court, and shall seek for dismissal of the such cased pending between each other.
11. Both the parties undertake that they have no claims what so ever against each other hereinafter. And further the respondent undertakes that she will not raise any financial claims and rights over the movable and immovable properties belonging to each other and their parents either in past, present or future. Nor shall make any claim as against any service benefits of Appellant.
12. Both the parties admit that they shall not interfere in the lives of each other in future and also shall not have any contact with each other's friends and relatives. They shall not create any situation which may defame or lower the reputation of parties or their family members in the society. It is further agreed that they shall not enter at each other's residence and work place.
13. The respondent has received a sum of Rs.10,00,000/- (Ten Lakhs) vide demand draft dated 13/10/2020 bearing number 017785 for a sum of Rs.6,00,000/- (Six Lakhs only) and DD dated 13/10/2020 bearing No:179231 for a sum of Rs.4,00,000/- (four Lakhs only) and -: 9 :- a sum of Rs.2,00,000/- (Two Lakhs) by way of Cash, which in Total a sum of Rs.12,00,000/- (Twelve Lakhs only) paid before this Hon'ble Court, as full and final settlement of all her claims towards maintenance/permanent alimony.
14. It is pertinent to submit that:
a. Since 2011 litigations are going on between the parties herein one after the other viz, Crime No:218/2011, MC NO:3997/2013, Ex. No:52/2020, Crl. Misc No:168/2020, Crl.Mis No:41/2020, and the above appeal.
b. Initially since 03/10/2010 started to live separately, thereafter in the fag end of the year 2012 the parties have rejoined together which did not last for long time as there was no compatibility between them, and as such since June 2013 they started to live separately, and living separately until today.
c. The other proceedings pending consideration
between the parties herein are
Ex.No:52/2020, Crl. Misc. No:168/2020
before the V Additional Principal Judge
Family Court at Bangalore, Crl. Mis.
No:41/2020 on the file of Metropolitan
Magistrate Traffic Court-I.
d. There were several Panchayath held between
the parties to reunite them which did not yield any fruit full result, so also the parties herein were referred to Mediation/Conciliation before the Trial Court, -: 10 :- which also came to be failed, and matter came to be contested.
e. Having considered their own agony and anguish, and there being no any chance of reunite, as all the efforts made to reunite has been failed, and the marriage has been irretrievable broken down, the parties have decided to get their marriage dissolved by mutual consent, so as to lead their respective life independently for their well being, and have arrived at genuine settlement which takes care of the alimony, custody of child and his education and other pending issues between the parties herein.
WHEREFORE, in view of the aforesaid facts and circumstances of the case the parties herein humbly prays that this Hon'ble Court be pleased to Grant Decree of Divorce On Mutual Consent by dissolving the Marriage between the Petitioner/Appellant and the Respondent that was solemnized on 14.02.2002 at Shiva Prabha Kalyana Mantapa, West of Chord Road, Bengaluru, by allowing this Application/Petition and by granting such other relief or relief's as the Hon'ble Court may deem fit and proper in the circumstances of the case, in the ends of justice.
Sd/- Sd/-
ADVOCATE FOR APPELLANT APPELLANT
Sd/- Sd/-
ADVOCATE FOR RESPONDENT RESPONDENT
Bangalore
Date 20.10.2020
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VERIFICATION
We, the parties above named do hereby solemnly state and declare that what is stated in the above paragraphs 1 to 14 are true to best of our knowledge, belief and information and assenting to the same we have signed the same.
Sd/-
Place: Bengaluru APPELLANT
Dated: 20.10.2020
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RESPONDENT"
The said petition is supported by concurring verifying affidavits filed by the respective parties.
8. The parties have also filed an application under Section 13B(2) of the Act read with Section 151 of the Code of Civil Procedure, 1908. It is supported by a joint verifying affidavit, which we have perused. In the circumstances, we think, it just and proper to consider the application filed under Section 13B(2) of the Act and therefore, we waive the period of six months stated therein as per the judgment of the Hon'ble Supreme Court in Amardeep Singh vs. Harveen Kaur [(2017)8 SCC 746] (Amardeep Singh vs. Harveen Kaur). Hence, I.A.No.1/2020 is allowed.-: 12 :-
9. We have perused the terms of settlement arrived at between the parties and on perusal of the same, we find them to be lawful. We do not find any legal impediment in accepting the terms of settlement.
Therefore, the same are accepted.
10. Learned counsel for the appellant has handed over two demand drafts as detailed above for a sum of Rs.6.00 lakh and Rs.4.00 lakh respectively and cash of Rs.2.00 lakh to the learned counsel for the appellant who has in turn handed them over to the respondent, who has acknowledged the receipt of the same.
11. In the circumstances, the impugned judgment and decree of the trial Court is substituted by this judgment. The marriage between the parties solemnized on 14/02/2002 at Shiva Prabha Kalyana Mantapa, West of Chord Road, Bengaluru, is dissolved by a decree of divorce by mutual consent and in terms of the settlement arrived at between the parties.
12. The appeal is allowed and disposed of in the aforesaid terms.
-: 13 :-13. Registry to draw up a decree under Section 13B(1) of the Act incorporating the terms of settlement.
In view of the aforesaid judgment the memo filed, the compromise petition is ordered to be withdrawn.
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JUDGE Sd/-
JUDGE S*