Karnataka High Court
Sri Nagaraja @ Raju vs Mrs. Leelavathi K K @ Shilpa on 12 April, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO. 18293 OF 2018 (GM-RES)
BETWEEN:
SRI. NAGARAJA @ RAJU,
S/O SRI. DASEGOWDA,
AGED ABOUT 37 YEARS,
OCC: SUPERINTENDENT,
DEPARTMENT OF EDUCATION,
R/AT NO.10, III MAIN ROAD,
VENKATASWAMAPPA LAYOUT,
VIDYARANYAPURA,
BANGALORE-560 097.
...PETITIONER
[BY SRI. SRINIVASA K.N., ADVOCATE (PH)]
AND:
1. MRS. LEELAVATHI K.K. @ SHILPA,
D/O SRI. K.KRISHNE GOWDA,
AGED ABOUT 32 YEARS,
2. KUMARI JANHAVI N.,
D/O SRI. NAGARAJA @ RAJU,
AGED ABOUT 08 YEARS,
SINCE MINOR REP. BY NATURAL GUARDIAN
MOTHER RESPONDENT NO.1
SMT. LEELAVATHI K.K., @ SHILPA,
D/O K. KRISHNE GOWDA,
AGED ABOUT 31 YEARS
BOTH ARE PRESENTLY R/AT C/O
SRI. K.KRISHNE GOWDA, NO.33,
'SRINIVASA NILAYA' 2ND CROSS,
3RD MAIN ROAD,
NEAR SHANTHIDHAMA SCHOOL,
-2-
BHIRAVESHWARA NAGARA,
SUNKADAKATTE,
BANGALORE - 560 091.
...RESPONDENTS
[BY SRI. SHIVA PRASAD C., ADVOCATE FOR R1 & R2 (PH)]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN
MISELLANEOUS NO.90/2016, ON THE FILE OF VI ADDL. PRL. JUDGE, FAMILY
COURT, BENGALURU AND QUASH THE ORDER DATED 04.10.2017 IN MISC.
PETITIOON NO.90/2016 FILED IN M.C.NO.4278/2013, WHICH IS PRODUCED
AT ANNEXURE-H.
THIS PETITION IS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.03.2023, THIS DAY, THE COURT, PRONOUNCED THE
FOLLOWING:
ORDER
Challenging order dated 04.10.2017 passed by VI Additional Principal Judge, Family Court, Bengaluru in Misc. Petition no.90/2016 filed in M.C.no.4278/2013 at Annexure-H, this writ petition is filed.
2. Sri. Srinivasa K.N., learned counsel for petitioner submitted that marriage of petitioner with respondent no.1 was solemnized on 13.09.2009 at Saraswathi Convention Hall, Magadi Road, Bengaluru. From said marriage, they begot respondent no.2 on 19.12.2009.
3. Thereafter, petitioner and respondent no.1 filed M.C.no.4378/2013 under Section 13B of Hindu Marriage Act, 1955 (for short 'H.M. Act') for divorce by mutual consent. Said petition was referred to 'Bangalore Mediation Centre'. On successful conciliation, -3- settlement was arrived at between parties. Memorandum of settlement was filed on 26.04.2014 (Annexure-B), whereunder petitioner had agreed to pay:
i. Rupees One lakh to respondent no.1.
ii. Rupees Two lakhs to be kept in fixed deposit in name
of respondent no.2.
iii. To bear premium of LIC policy for Rupees Two Lakhs
Twenty Thousands in name of respondent no.2.
4. It was submitted that, in terms of settlement, petitioner paid Rupees One lakh to respondent no.1 by way of cheque bearing no.168652 dated 25.04.2014, drawn on Karnataka Bank Ltd. He also kept Rupees Two lakhs in fixed deposit vide FDR no.928418 dated 26.04.2014 in name of respondent no.2 and also obtained LIC policy in his name i.e., bond bearing no.361605694 for sum assured i.e., Rupees Two Lakhs Twenty Thousand, and handed over same to respondent no.1 on 26.04.2014. Taking note of same, M.C.no.4278/2013 was decreed as per settlement (Annexure-D).
5. After lapse of four years, respondent no.1 filed Misc. Petition no.90/2016 (Annexure-E) under Sections 25(2) and 26 of H.M. Act, seeking for modification of consent divorce decree at Annexure - D and for grant of monthly maintenance at Rupees Twenty Thousand and Rupees Forty Lakhs as additional permanent alimony to respondent -4- no.1 and Rupees Ten Thousand as monthly maintenance to respondent no.2.
6. After service of summons in said petition, petitioner filed application under Section 151 of CPC (Annexure-F), questioning maintainability of Miscellaneous Petition in view of earlier consent decree. Said application was opposed.
7. Without proper appreciation of contentions of petitioner, vide impugned order dated 04.10.2017 (Annexure-H), Family Court dismissed application. Aggrieved by said order, writ petition was filed.
8. It was submitted that in view of decision of Hon'ble Supreme Court in case of K. Srinivasappa and Ors. vs. M. Mallamma and Ors.,1, compromise decree under Order XXIII Rule 3 of CPC, would be binding on parties, therefore petition for modification of compromise decree under Section 25(2) of H.M. Act, would not be maintainable. Under such circumstances, rejection of petitioner's application (Annexure-F) by Family Court was illegal and arbitrary, therefore liable to be quashed.
9. It was further submitted that as decree of divorce was not granted under Section 25(1) of H.M. Act, petition for modification under Section 25(2) of H.M. Act, would not be maintainable. It was 1 AIR 2022 SC 2381, -5- contended that same would be contrary to very object in enacting Section 89 of CPC. On above grounds, learned counsel sought for quashing impugned order.
10. On other hand, Sri. Shiva Prasad E, learned counsel appearing for respondents submitted that though petition for divorce was filed under Section 13B of H.M. Act, and decree of divorce was passed after settlement arrived at between parties in mediation, Section 25(1) of H.M. Act, enables either of parties to seek for grant of maintenance. And order for maintenance/permanent alimony granted would be open for modification under Section 25(2) of H.M. Act. In support of said submission, learned counsel relied upon decision of Division Bench of High Court of Bombay in case of Geetha Sathish Gokarna vs. Sathish Shankarrao Gokarna2, wherein it has held that any term of settlement restricting right to claim maintenance under Section 25(1) of H.M. Act, would be against public policy.
11. Heard learned counsel and perused writ petition record.
12. From above submission, question for consideration would be, whether respondents are barred from seeking modification of maintenance granted under decree of divorce by mutual consent?
13. Admittedly, decree of divorce is obtained in a petition filed under Section 13B of H.M. Act, which merely provides for divorce by 2 AIR 2004 Bom. 345 -6- mutual consent. Provision for maintenance/permanent alimony is governed by Section 25 of H.M. Act. Sub-Section (1) thereof provides for passing any decree for maintenance and said provision does not distinguish between consent and contested decree of divorce.
14. Section 25(2) of H.M. Act, specifically provides that where Court is satisfied that there is change in circumstances, after an order is passed under sub-section (1), it may at instance of either party vary, modify or rescind order as deemed just.
15. On perusal of decision in K Srinivasappa's case (supra) relied upon by learned counsel for petitioner, it is seen that upon parties proposing settlement, matter was referred to Lok-Adalat and compromise was recorded by Lok-Adalat on 07.07.2012. Immediately thereafter, plaintiff's therein filed affidavit before Lok-Adalat alleging fraud played by defendant while obtaining consent for compromise. On rejection of affidavit, writ petition was filed. Same was allowed and matter remanded back to Lok-Adalat for holding enquiry regarding fraud. Thereafter Lok-Adalat confirmed earlier compromise. On challenge in writ petition, compromise was negated and Civil Court directed to proceed as if there was no compromise. Challenging said order, matter was taken to Supreme Court.
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16. Under above circumstances, Hon'ble Supreme Court referring to Section 21(2) of Legal Services Authority Act, 1987, which made every award of Lok-Adalath as final and binding on all parties, set-aside order of High Court and restored award of Lok-Adalat. In instant case however, after settlement was arrived at between parties in mediation, it was recorded by Family Court. Therefore, it would be a decree under provisions of H.M. Act and ratio in above decision would not apply.
17. On other hand, High Court of Allahabad in case of Ram Shanker Rastogi v/s Vinay Rastogi3, wherein an application under Section 25(2) of H.M.Act was filed for enhancement of maintenance after passing of decree of divorce, Division Bench held:
"10. Neither the provisions of S. 11 of the Code of Civil Procedure nor the principles of res judicata will bar a suit for maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree had been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final."
18. Likewise, High Court of Tripura in case of Harilal Sarkar v/s Subhra Sarkar (Choudhury)4, upheld order passed by Family Court under Section 25(2) of H.M. Act increasing maintenance payable 3 1990 SCC OnLine All 312 4 2016 SCC OnLine Tri 356, -8- to wife and daughter, even after earlier decree of divorce was based on compromise between parties. It was held:
"10. On the face of the submission made by the learned counsel for the parties, 3 (three) pertinent questions have emerged for consideration, which are as under:
(i) Whether by agreement the jurisdiction of the competent court under Section 25 (2) of the Hindu Marriage Act, 1955 can be ousted?
(ii) Whether the judgment and order dated 14.09.2010 is the order of maintenance under Section 25(1) of the Hindu Marriage Act or not?
(iii) Whether the right to future maintenance is transferrable and if not whether the settlement is void, so far the terms of maintenance is concerned?
WHETHER BY AGREEMENT THE JURISDICTION OF THE COMPETENT COURT UNDER SECTION 25(2) OF THE HINDU MARRIAGE ACT, 1955 CAN BE OUSTED?
11. By agreement, jurisdiction of the Court which has been created by a statute cannot be taken away. Section 25 as a whole confers the jurisdiction on the competent court to provide permanent alimony and maintenance "at the time of passing any decree or at any time subsequent thereto," on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay maintenance and support such gross sum (alimony) which is factored by various element as statutorily provided or by the law as developed in the course of time. It is no more res integra that if any agreement comes in conflict with any valid statute or its provision that becomes unlawful agreement and void in terms of Section 23 of the Indian Contract Act. Hence the jurisdiction of the court for granting maintenance at the time of passing any decree or subsequent thereto cannot be taken away by the settlement/agreement. It is true that if the order is passed under Section 25(1) of the Hindu Marriage Act, 1955 in that case the competent court may vary, modify or rescind any order of maintenance or gross maintenance in a change in the circumstance under Section 25(2) of the Hindu Marriage Act, 1955. But at the same time, if any settlement which has been acted on by the court or recorded, the parties thereto cannot in the ordinary course take the stand contrary thereto and in that case, their action might be hit by the -9- principle of estoppel, if not, such stand emanates from the statute.
WHETHER THE JUDGMENT AND ORDER DATED 14.09.2010 IS THE ORDER OF MAINTENANCE UNDER SECTION 25(1) OF THE HINDU MARRIAGE ACT OR NOT?
12. There was a compromise petition before the court on settlement of the quantum of the maintenance which was termed as the fixed maintenance and the court had given its approval by passing the compromise decree on granting divorce and maintenance. It is a well accepted proposition that compromise decree pertains the charter of agreement and the decree is drawn accordingly. It can perhaps be said that the quantum of maintenance under the decree was not the result of any decision by the court, it was the result of an agreement between the parties, which was acknowledged by the court, for purpose of making it executable at the instance of maintenance-holder.
13. In Seshi Ammal v. Thaiyu Ammal, reported in AIR 1964 Madras 217 (V 51 C 61), the Madras High Court has enunciated the law holding that such a case will be one where the maintenance is fixed by a decree of court though the basis of it was an agreement it will come directly under Section 25. Thus, the respondent will be entitled to have an enhancement of maintenance once she proves that there has been a material change in the circumstances justifying the enhancement. Therefore, even if agreement relating to the quantum may be the part of the settlement but when the decree passed on adopting the said settlement it becomes the order under Section 25 (1) of the Hindu Marriage Act. And as such the court has the statutory jurisdiction under Section 25(2) to direct enhancement of the maintenance with a change in the circumstances. The said manner may not be applicable in the case where the permanent alimony has been settled and paid by means of one-time payment. That payment has to be treated as the property transferred for purpose of maintenance."
19. Referring to said decision High Court of Himachal Pradesh in case of Kubja Devi v/s Shri Ishwar Dass5, has also upheld 5 2016 SCC OnLine HP 4027
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variation of alimony under Section 25(2) even after dissolution of marriage between parties by consent decree of customary divorce.
20. In Geeta Satish Gokarna's case (supra), Division Bench of Bombay High Court held a condition of settlement barring claim for maintenance/alimony in future by respondent as being against public policy and not affecting right available under Section 25(1) of H.M. Act.
21. Therefore, it would emerge from above decisions that parties to decree of divorce would be entitled to apply for variation/modification of maintenance on any changed circumstances at any subsequent period of time under Section 25(2) of H.M. Act regardless of fact that earlier decree of divorce and order of maintenance was on consent/compromise. Any condition to contrary would be against public policy.
For foregoing reasons, writ petition lacks merit. It is accordingly dismissed with costs of Rupees Fifteen Thousand to be paid to respondents within period of two months.
Sd/-
JUDGE GRD