Karnataka High Court
Sri. Suresh. S vs Smt. Lakshmi on 23 August, 2021
Equivalent citations: AIRONLINE 2021 KAR 2784
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2021
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE P.KRISHNA BHAT
M.F.A. No.9125/2017 (FC)
C/W
M.F.A. No.9126/2017 (FC)
IN MFA NO.9125/2017
BETWEEN:
Sri.Suresh S.
S/o late Siddaiah,
Aged about 36 years,
R/at No.21, 10th B-Cross,
Agraharadasarahalli,
Bengaluru - 560 079.
... APPELLANT
(By Mr.M.S.Nagaraja, Advocate)
AND:
Smt.Lakshmi,
W/o Suresh S.,
Aged about 25 years,
R/at No.560, 11th Cross,
8th Main Road,
Kanakanagara,
Bengaluru - 560 072.
... RESPONDENT
(By Mr.A.Ramachandra, Advocate)
This MFA is filed U/S.19(1) of Family Court Act,
against the judgment and decree dated 23.10.2017 passed
on M.C.No.3794/2010 on the file of the II Additional
Principal Judge, Family Court, Bengaluru, allowing the
petition filed U/S.9 of the Hindu Marriage Act.
-: 2 :-
IN MFA NO.9126/2017
BETWEEN:
Sri.Suresh S.
S/o late Siddaiah,
Aged about 36 years,
R/at No.21, 10th B-Cross,
Agraharadasarahalli,
Bengaluru - 560 079.
... APPELLANT
(By Mr.M.S.Nagaraja, Advocate)
AND:
Smt.Lakshmi,
W/o Suresh S.,
Aged about 25 years,
R/at No.560, 11th Cross,
8th Main Road,
Kanakanagara,
Bengaluru - 560 072.
... RESPONDENT
(By Mr.A.Ramachandra, Advocate)
This MFA is filed U/S.19(1) of Family Court Act,
against the judgment and decree dated 23.10.2017 passed
on M.C.No.2444/2014 on the file of the II Additional
Principal Judge, Family Court, Bengaluru, dismissing the
petition filed U/S.13(1)(ia) and (ib) of Hindu Marriage Act.
These appeals coming on for orders this day,
NAGARATHNA J., delivered the following:
JUDGMENT
These appeals are listed to consider the petition filed by the parties under Section 13B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act'), as the parties have filed the said petition along with an application under Section 13B(2) of the Act, seeking -: 3 :- dissolution of their marriage by a decree of divorce by a mutual consent.
2. M.F.A.No.9125/2017 is filed against the common judgment and decree passed in M.C.No.3794/2010 assailing the grant of decree of restitution of conjugal right in favour of the respondent/wife, while M.F.A.No.9126/2017 is filed against the judgment and decree of dismissal of the divorce petition filed by the appellant/husband in M.C.No.2444/2014. By a common judgment and decrees passed in the aforesaid petitions, learned II Additional Principal Judge, Family Court at Bengaluru, dated 23.10.2017 has allowed the petition filed by the respondent/wife under Section 9 of the Act, while dismissing the petition filed by the appellant/husband under Section 13(1)(ia) of the Act. Hence, the husband being aggrieved by the said judgment and decrees has preferred these appeals.
3. Learned counsel for the respective parties submitted that during the pendency of these appeals, the parties have negotiated a settlement and they have decided to dissolve their marriage by a decree of divorce by a mutual consent on certain terms and conditions. That -: 4 :- the petition has been filed under Section 13B(1) of the Act, which is supported by the affidavits of the parties. They have also filed an application under Section 13B(2) of the Act seeking waiver of the statutory period of six months stipulated under the said provision and the decree of divorce by a mutual consent be granted by this Court.
4. Learned counsel for the respective parties submitted that these appeals may be disposed of in terms of the settlement arrived at between the parties.
5. The parties are present before this Court. They have been identified by their respective counsel. When queried, they stated that they indeed decided to settle the disputes between them by filing a joint petition under Section 13B(1) of the Act on certain terms and conditions as set out therein. They further stated that they have arrived at a settlement based on their own free volition without there being any coercion, undue influence from any side. They further stated that these appeals could be disposed of in terms of the settlement arrived at between them.
6. Learned counsel for the appellant/husband submitted that the appellant has agreed to pay a sum of -: 5 :- Rs.5,00,000/- (rupees five lakhs only), to the respondent/wife towards full and final settlement of her permanent alimony and a further sum of Rs.5,00,000/- (rupees five lakhs only), is being paid to a minor son Master Jeevan towards maintenance. The said sum being made through two Demand Drafts as detailed in paragraph No.7 of the joint petition filed under Section 13B(1) of the Act. Learned counsel for the appellant also handed over the said Demand Drafts to learned counsel for the respondent, who has in turn handed them over to the respondent/wife who has acknowledged receipt of the same.
7. The joint memo filed under Section 13B(1) of the Act is taken on record. It is noted that it is signed by the respective parties and their respective counsel. The petition is supported by the affidavits filed by the parties separately, but to a common identical effect. The petition reads as under:
"JOINT PETITION UNDER SECTION 13B(1) OF HINDU MARRIAGE ACT, 1956 The appellant and respondent respectfully submit as follows:-: 6 :-
1. The appellant herein has filed the above appeals challenging the legality and correctness of the common judgment passed by the learned Hon'ble II Additional Principal Family Judge, Bengaluru, in M.C.No.3794/2010 & M.C.No.2444/2014 vide judgment and decree dated 23.10.2017, wherein the petition filed by the appellant/husband seeking dissolution of marriage on the ground of cruelty and desertion was came to be dismissed and the petition filed by the respondent/wife was came to be allowed.
2. The appellant and respondent are husband and wife, their marriage had taken place on 11.05.2008 at S.H.K. Kalyana Mantap, Bangalore. Out of the marriage they have got a son by name Jeevan who is presently aged about 12 years and he is in the care and custody of respondent.
3. It is submitted that due to differences between the parties herein, they have got separated and residing separately from July 2008 and there was no possibility of reunion and the marriage between the parties has been irretrievably broken down.
Hence, the parties have decided to dissolve their marriage dated 11.04.2008 by way of mutual consent on the following terms and conditions.
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4. The dispute between the parties to the above appeals and all other disputes pending between the parties have been amicably settled at the intervention of friend, well-wishers and family members of both the parties. The parties have arrived at the settlement in the following terms.
5. The appellant and respondent hereby agree to withdraw all the cases filed by them against each other which are pending before various courts in view of this compromise.
6. The appellant has agreed to pay totally a sum of Rs.10,00,000/- (rupees ten lakhs only) to the respondent and her son towards full and final settlement of all the claims of respondent and her son against the appellant in respect of all the cases filed by her and her son which are pending before the various courts.
7. Accordingly, appellant has agreed to pay a sum of Rs.05,00,000/- (rupees five lakhs only) to respondent, through Demand Draft No.533217 dated 07.08.2021, drawn on State Bank of India, Malagala Road Branch, Bangalore, before this Hon'ble Court, as permanent alimony, further, appellant has agreed to pay a sum of Rs.05,00,000/- (rupees five lakhs only) to the minor son Master Jeevan as maintenance through Demand Draft No.533224 dated 12.08.2021, -: 8 :- drawn on State Bank of India, Malagala Road Branch, Bangalore, before this Hon'ble Court, which respondent shall deposit in fixed deposit/s in the name of minor child in State Bank of India, Malagala Road Branch, Bangalore, forthwith and until the minor child attains the age of majority by appointing respondent as guardian of the said deposit. The respondent undertakes that she shall not pre-close or raise any loan on the security of Fixed Deposit which is deposited in the name of minor child, besides, respondent also undertakes that she shall not withdraw even the accrued interest on the said fixed deposit amount of Rs.05,00,000/- (rupees five lakhs only) but, the respondent shall provide education to the minor child. The above said amount paid by the appellant towards his minor son shall be for education, maintenance, medical and other expenses of the minor child till he attains the age of majority. The respondent shall not withdraw the said amount at any point of time and the child is at liberty to make use of the said amount after attaining majority according to his will and wish. The respondent is only the guardian and nominee of the said fixed deposit amount. The appellant has handed over the aforesaid demand drafts to the custody of respondent before this Hon'ble -: 9 :- Court. The custody of the child shall remain exclusively with the respondent.
8. Both the parties hereby agree that in future they will not file any cases against each other including on behalf of minor child and in view of the payment of permanent alimony to respondent, the parties have agreed to dissolve the marriage taken place between them which was solemnized on 11.05.2008 at S.H.K. Kalyana Mantap, Bangalore. The respondent has no objection to allow the divorce petition filed by the appellant herein, in M.C.No.2444/2014 on the file of the II Additional Principal Family Court Judge, Bangalore, and further she has no objection to set aside the judgment and decree of restitution of conjugal rights passed in M.C.No.3794/2010 dated 23.10.2017 passed by the learned II Additional Principal Family Court Judge, Bangalore.
9. The amount paid by the appellant to respondent in a sum of Rs.05,00,000/- (rupees five lakhs only) is the permanent alimony during her life time which includes the past, present and future maintenance awarded in Criminal Miscellaneous No.250/2012 under D.V. Act by the learned Metropolitan Magistrate Traffic Court, Bangalore, and the respondent or her son -: 10 :- shall not claim any maintenance against the appellant during his life time.
10. Both appellant and respondent have agreed that, in view of the settlement, all disputes between them shall be closed and terminated and they do not have any kind of claim/s against each other, in any manner whatsoever.
11. The respondent has also filed a suit for partition through her son against the appellant, his mother & sister in O.S.No.6457/2020 on the file of City Civil Court Judge, Bangalore, though the properties under the suit are the absolute and exclusive properties of his mother and sister. Hence, in view of the settlement, the respondent has agreed to withdraw the suit immediately by producing the copy of this compromise petition. In the event of any circumstance, if the respondent fails to withdraw the aforesaid suit, the appellant is at liberty to produce the copy of the compromise petition and get dismissed the suit before the concerned City Civil Court, Bangalore, on the basis of the settlement and for which the respondent has no objection for the same.
12. Both parties have entered into this compromise voluntarily, out of their free will and wish. There is no coercion or force from anybody in entering the compromise. -: 11 :-
WHEREFORE, both appellant and respondent pray that this Hon'ble Court may be pleased to dissolve their marriage dated 11.05.2008 solemnized between the appellant and respondent at S.H.K. Kalyana Mantap, Bangalore, in terms of the above compromise petition in the interest of justice and equity.
Sd/- Sd/-
ADVOCATE FOR APPELLANT APPELLANT
Sd/- Sd/-
ADVOCATE FOR RESPONDENT RESPONDENT
VERIFICATION
We, Sri.S.Suresh, appellant and
Smt.Lakshmi, respondent herein do hereby verify and declare that the statements made above are true and correct to the best of our knowledge, belief and information.
Sd/-
APPELLANT Sd/-
Bengaluru RESPONDENT
Dated: 13.08.2021"
8. On reading of the said petition, it is noted that, apart from payment of permanent alimony to the respondent/wife and the maintenance to the minor son, it -: 12 :- has been agreed that the minor son shall remain in the custody of the respondent/wife who shall be responsible for the education and upbringing of the minor son Master Jeevan. No visitation rights have been reserved to the appellant/husband. As already noted, appellant has paid Rs.10,00,000/- (rupees ten lakhs only) in toto to the respondent in terms of two Demand Drafts.
9. The parties have also filed a joint application seeking waiver of statutory period of six months as stipulated under Section 13B(2) of the Act. The said application is supported by a joint affidavit of the parties.
10. Learned counsel for the respective parties submitted that the parties were married on 11.05.2008. That the petitions by them were filed in the years 2010 and 2014 and they were disposed of in the year 2017 and since the year 2010 the parties have been living separately i.e. for a period of nearly eleven years. That there is no possibility of a reconciliation of the differences between the parties nor cohabitation between them. Hence, the application filed by the parties seeking waiver of the statutory period of six months as stipulated under Section 13B(2) of the Act may be allowed.
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11. We have perused the application and the affidavit filed in support of the same and we find that having regard to the fact that the parties have been residing separately for the last eleven years and there is no possibility of reconciliation of the differences between them, nor cohabitation, placing reliance of the judgment of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746], we allow the application filed by the parties seeking waiver of the statutory period of six months. We have perused the terms of settlement arrived at between the parties from the joint petition filed by them under Section 13B(1) of the Act. On perusal of the same, we are satisfied that the terms of settlement are in accordance with law. Accordingly, we accept the same. We also find that there is no legal impediment in accepting the terms of settlement.
12. Consequently, the petition filed by the parties under Section 13B(1) of the Act is allowed. The marriage solemnized between the appellant and the respondent on 11.05.2008 at S.H.K. Kalyana Mantapa, Bangalore, is dissolved by a decree of divorce by a mutual consent. In the circumstances, the impugned judgment and decrees -: 14 :- passed in M.C.No.3794/2010 connected with M.C. No.2444/2014 dated 23.10.2017 by the II Additional Principal Judge, Family Court Bengaluru, are set aside.
13. The respondent shall deposit the amount of Rs.5,00,000/- (rupees five lakhs only) paid towards the maintenance of the minor son Master Jeevan in any Post Office or Nationalized Bank until he attains the age of majority. However, the respondent shall be entitled to draw the periodical interest on the said deposit and utilize the same for the welfare of the minor son.
Appeals are disposed of in the aforesaid terms. Parties to bear their respective costs. Registry to draw up a decree in the aforesaid terms. In view of the disposal of the appeals, IA No.1/2021 filed in both the appeals stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE AP*