Karnataka High Court
Mrs Ananya R vs Nil on 20 March, 2020
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2020
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.6450 OF 2020 (GM-FC)
BETWEEN
1. MRS. ANANYA R
W/O AVINASH N
AGED ABOUT 36 YEARS
RESIDING AT NO.30
1ST MAIN ROAD, 3RD BLOCK
3RD STAGE, BASAVESHWARA NAGARA
BANGALORE-560079
2. MR. AVINASH NAGARAJ
S/O N. NAGARAJ
AGED ABOUT 40 YEARS
RESIDING AT NO 20, 1ST MAIN ROAD
DODDEGOWDANA KOPPALU
K.SHETTAHALLI HOBLI
SRIRANGAPATANA TALUK
MANDYA-571438
...PETITIONERS
(BY SMT. MAMATHA D.N, ADVOCATE FOR P1;
SRI. DODDATHAMME GOWDA M.L, ADVOCAE FOR
P2)
AND
NIL
...RESPONDENT
(RESPONDNENT-NIL)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH/MODIFY THE ORDER DATED 12.3.2020 PASSED BY
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THE V ADDITIONAL FAMILY COURT AT BANGALORE IN
I.A.NO.III OF THE MC NO.1229/2020 PRODUCED AT
ANNEXURE-K AND WAIVE OF THE STATUTORY WAITING
PERIOD OF 6 MONTHS FOR GRANT OF DIVORCE TO BOTH
THE 1ST AND 2ND PETITIONER.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
The first petitioner is the wife and the second petitioner is the husband. There are no respondent since the petition arises out of a petition filed under Section 13B of the Hindu Marriage Act, 1955 (for short, 'the Act') seeking a decree of divorce by mutual consent and both the parties before the trial Court have preferred this petition. The parties are aggrieved by the order dated 12.03.2020 passed by the V Additional Principal Judge, Family Court at Bengaluru in M.C.No.1229/2020, on I.A.No.III, which was filed by the parties to waive/dispense with the statutory six months waiting period under Section 13B(2) of the Act.-3-
2. The learned counsels of both the parties would jointly submit that though the decision of the Hon'ble Apex Court in the case of Amardeep Singh Vs. Harveen Kaur, reported in (2017) 8 SCC 746, was brought to the notice of the family Court, the application was rejected on the ground that there is no reference or pleading that all the four conditions imposed by the Hon'ble Supreme Court of India was complied by the parties.
3. In the case of Amardeep Singh (supra), the facts were very similar to the case on hand. The parties there were married in the year 1994. Two children were born in the year 1995 and 2003, respectively. Since 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28.04.2017 a settlement was arrived at to resolve all the disputes and seek divorce by mutual consent. The respondent wife was given permanent alimony, the husband had handed over two cheques towards part payment of permanent alimony. Custody of the children was -4- agreed to be with the mother. Under such circumstances, waiver of the period of six months for the second motion on the ground that they have been living separately for the last more than eight years and there is no possibility of their re-union was pressed into services by the parties. When such an application was rejected, the Hon'ble Supreme Court considered the provisions under Section 13B of the Act, in detail.
4. In para No.14, the Hon'ble Apex Court considered the decisions of the High Courts of Andhra Pradesh, Karnataka, Delhi, Madhya Pradesh and Kerala. The Hon'ble Apex Court noticed that the view of High Courts were that the waiting period enshrined under Section 13B(2) of the Act is discretionary and can be waived by the court where proceedings are pending, in exceptional situations. Therefore, the Hon'ble Apex Court directed that the Courts should consider the following questions:
i) How long parties have been married? -5-
ii) How long litigation is pending?
iii) How long they have been staying
apart?
iv) Are there any other proceedings
between the parties?
v) Have the parties attended mediation/
conciliation?
vi) Have the parties arrived at genuine
settlement which takes care of
alimony, custody of child or any other pending issues between the parties?
5. The Hon'ble Apex Court further held that the Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. It was also held that the object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The object of the cooling off period was to safeguard against a hurried decision if -6- there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation.
6. While applying the above, to the case before the Hon'bel Apex Court, the Court observed that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order 32-
A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; -7-
iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.
7. As seen from the impugned order, the family Court has rejected the application by merely noticing that there is no reference or pleading that all the four conditions imposed by the Hon'ble Supreme Court of India in paragraph No.19 of the said judgment are fulfilled.
8. In the joint affidavit filed by the parties along with the application seeking waiver of the statutory period as provided under Section 13B(2), the complete details along with the chronological events have been stated in the affidavit. As can be seen from the joint affidavit, the marriage between the parties was solemnized on 26.11.2009, at Bengaluru as per the Hindu rituals and as per the customs prevailing in the community. The marriage was also registered -8- before the Registrar of Marriages at Mysuru on 27.11.2009. The first petitioner wife gave birth to a male child on 14.10.2011 and a female child on 16.01.2016. The second petitioner-husband left India and started living in Germany from 02.11.2017. It is stated that the parties ceased to live as husband and wife from 02.11.2017. The second petitioner-
husband filed a matrimonial case in M.C.No.620/2019 for divorce under Section 13(1) (ia) (ib) of the Act, on 30.01.2019 before the V Additional Principal Judge, Family Court at Bengaluru.
9. The first petitioner-wife registered a criminal case against her husband and her in-laws in Cr.No.290/2019 on 24.08.2019. However, at the instance of the elders of both the families, the parties have arrived at a settlement that the marriage had broken down irretrievably and therefore the parties were advised to file a petition for decree of divorce by mutual consent. It is very clearly stated in the joint affidavit that the parties have been living separately -9- since 02.11.2017 and therefore, the first condition imposed by the Hon'ble Apex Court that parties have been living separately for a period of six months as provided under Section 13B(2) of the Act in addition to the statutory period of one year under Section 13B(1) of separation of parties has been fulfilled. All efforts for mediation/conciliation including the efforts in terms of Order 32-A Rule 3 of CPC, Section 23(2) of the Act and Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction in view of the fact that mediation and conciliation efforts in M.C.No.620/2019 failed.
10. The parties have genuinely settled their differences as seen from the para No.13 of the Memorandum of petition in M.C.No.1229/2020, wherein it is stated that the first petitioner-wife has agreed not to claim any alimony either temporary maintenance or permanent alimony from the husband since the first petitioner-wife is gainfully -10- employed and is a Doctor by profession. The first petitioner-wife has sufficient means to lead her life and also to look after her children and has also agreed not to claim any alimony or maintenance towards the children and she shall take care of all the expenses of education, medical and all other incidental expenses and upbringing of the children. The permanent custody of the two children shall remain with the first petitioner-wife and the second petitioner-husband has agreed for the same. The second petitioner-husband has expressed his no- objection for the first petitioner to take all the decisions with regard to the children's welfare and education, etc. and he does not claim any visitation rights of both the children. The parties have agreed to withdraw the cases filed against each other and settle all the issues. The only requirement of stating that the awaiting period will only prolong their agony has not been stated in the affidavit.
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11. In view of the above, the parties are permitted to file another joint affidavit regarding condition No.4 imposed by the Hon'ble Apex Court. While permitting the parties to file a fresh affidavit, the impugned order dated 12.03.2020 passed by the V Additional Principal Judge, Family Court at Bengaluru, in I.A.No.III of M.C.No.1229/2020, is set aside, while directing the Family Court to reconsider the application for waiver of the statutory period as provided under Section 13B(2) of the Act, in view of the observations made by this Court, hereinabove.
The writ petition is accordingly disposed of.
Sd/-
JUDGE DL