IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A.No.7118/2017 (FC) BETWEEN:
SMT. ANANTHALAKSHMI W/O VIKRAM B MITTADHAR D/O LATE. A N SUBRAMANYAM AGED ABOUT 41 YEARS R/AT NO.377/1, CHALUVAMBA AGRAHARA K.R.MOHALLA, MYSORE-24. ... APPELLANT (BY SRI M. MADHUSUDHAN, ADVOCATE FOR SRI VISWANATH SHETTY V., ADVOCATE) AND:
1. SHRI. VIKRAM B MITTADHAR S/O M.S. BALASUBRAMANYA AGED ABOUT 42 YEARS, 2. SHRI. M.S. BALASUBRAMANYA S/O NOT KNOWN AGED ABOUT 71 YEARS, 3. SMT. KAMALA W/O M.S. BALASUBRAMANYA AGED ABOUT 68 YEARS ALL ARE R/AT NO.28, ‘KAMALALAYA’ 18TH CROSS, POORNAPRAJNA NAGARA SUBRAMANYAPURA POST UTTARAHALLI HOBLI BANGALORE-560 061. ... RESPONDENTS (BY SRI G. VIKRAM, ADVOCATE FOR R-1;
V/O DATED: 17.12.2019 R-2 & R-3 ARE DELETED) THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, READ WITH SECTION 28(1) OF HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED:15.11.2016 PASSED IN M.C.NO.3776/2011 ON THE FILE OF THE IV ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 12(i)(a) AND SECTION 13(i-a) OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the wife against the first respondent – husband being aggrieved by the dismissal of her petition filed under Section 12(i)(a) and 13(1)(i-a) of the Hindu Marriage Act, 1955 [hereinafter, referred to as “the Act”, for the sake of brevity].
2. Learned counsel for respective parties submit that during the pendency of this appeal, parties have negotiated a settlement and they have filed a petition under Section 13B(1) of the Act and an application under Section 13B(2) of the Act. They submit that the application filed under Section 13B(2) of the Act, may be allowed and consequently, petition filed under Section 13B(1) of the Act may also be allowed. The parties are present before this Court and they have been identified by their respective counsel.
3. When queried by this Court, they stated that they have indeed agreed to seek dissolution of their marriage by a decree of divorce by mutual consent and that they have filed a petition seeking the said relief. They further stated that they have arrived at a settlement on their own free volition, without there being any coercion or undue influence from any side. They stated that since they have been separated since the year 2009, for almost a decade, their application seeking waiver of period of six months may be allowed.
4. We have taken on record the petition filed under Section 13B(1) of the Act and we note that it has been signed by the parties and their respective counsel. The said application is accompanied by a verifying affidavit. Further, an application has been filed under Section 13B(2) of the Act, which is also supported by a joint affidavit of the parties.
5. On perusal of the said petition filed under Section 13B(1) of the Act, we note that the parties have been separated for over a decade and that they have been living separately and they would not be able to live together and they have mutually agreed that their marriage shall be dissolved by a decree of divorce by mutual consent. The contents of the petition under Section 13B(1) of the Act reads as under:
“1. It is submitted that the appellant has filed this appeal challenging the judgment and decree dated:15.11.2016 passed by the IV Additional Principal Judge, Family Court, Bangalore in M.C. No.3776/2011.
2. It is submitted that the appellant and the First respondent are the husband and wife and our marriage was solemnized on 18.02.2008 at Rama Mandira N.R.Colony.
3. It is submitted that subsequent to filing of the above appeal, both of appellant and respondent have agreed to settle all disputes that are pending between them. It is further submitted that both of have agreed to withdraw all the allegations made against each other in M.C.No.3776/2011 on the file of the IV Additional Principal Judge, Family Court, Bangalore and CRL.Mis.308/2011 (earlier C.Misc.No.957/09) on the file of the Metropolitan Magistrate, Traffic Court-II, Bangalore. Accordingly, the appellant and respondent are hereby withdrawing all the allegations made against each other in the above said cases.
4. It is submitted that consequent upon such withdrawal of allegations, both of appellant and respondent have agreed that Revision petition No.723/2015 which is filed by the respondent as against the final judgment dated:20.08.2011 passed in Crl.Misc.No.308/2011 (earlier C.Misc.No.957/09) by the Court of Metropolitan Magistrate, Traffic Court-II, Bangalore, under Sec.12 of the Protection of Women from Domestic violence Act, 2005 and confirmed by the judgment dated:01/12/2011 passed in Crl. Appeal No.675/2011 passed by the Court of the City Fast Track(sessions) Judge: Bangalore City (FTC No:VI) will have to be allowed and the aforesaid judgments be set aside. Both of appellant and respondent will file necessary applications in this regard in Crl.Rev.Pet No.723/2015.
5. It is submitted that appellant and respondent have agreed that the amounts paid by the respondent to the appellant pursuant to the proceedings initiated by the appellant in Crl.Misc.No.308/2011 need not be returned and the respondent need not further pay any interim maintenance of Rs.5,000/- every month to the appellant.
6. It is submitted that both the appellant and the respondent have been living separately since January 2009 and they have no desire to perform marital obligations. There is no possibility of reconciliation.
7. It is submitted that appellant and respondent of their incompatibility the marriage has for all practical purposes broken in a manner that they cannot live together as husband and wife. Both of have come to the conclusion no purpose would be served if the marriage subsists and they have mutually agreed that the marriage should be dissolved.
8. It is submitted that both appellant and respondent have also taken into consideration that they do not have children out of their marriage.
9. It is submitted that appellant is not claiming anything from the respondent towards her permanent alimony. The appellant shall also not claim any share in the self-acquired properties of the respondent. Similarly the respondent shall have no claim in the self-acquired properties of the appellant. It is mutually agreed between the parties that the properties standing in their individual name shall absolutely belong to them and the other party shall have no claim whatsoever.
10. It is submitted that both appellant and respondent are filing this application voluntarily without being in any way being coerced or unduly influenced by any one and out of their own free will.
Wherefore the appellant and respondent humbly prays that this Hon’ble Court may be allow the Petition and be pleased to dissolve the marriage taken place between them on 18.02.2008 at Rama Mandira, N.R. Colony, Bengaluru by granting decree of consent divorce in the interest of justice.”
6. We have heard the learned counsel appearing for the parties and perused the application filed under Section 13B(2) of the Act seeking waiver of the period of six months stipulated under subsection (2) of Section 13B therein.
The parties have agreed to abide by the aforesaid terms and conditions.
7. Having regard to the dictum of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur reported in 2017 (8) SCC 746 and bearing in mind the facts of the present case, we find that the application filed under Section 13B(2) is liable to be allowed and hence, it is allowed.
8. On perusal of the terms and conditions of the petition filed under Section 13B(2) of the Act, we note that the same are lawful and that there is no legal impediment for accepting the same.
9. In the circumstances, the impugned judgment and decree dated 15.11.2016 passed by the IV Addl. Prl. Judge, Family Court, Bangalore in M.C.No.3776/2011 is substituted by granting the relief of dissolution of marriage of the parties that was solemnized on 18.2.2008 at Ram Mandir, N.R.Colony, Bangalore by granting the decree of divorce by mutual consent under Section 13B(1) of the Act.
10. The appeal is disposed in the aforesaid terms.
Registry to draw up decree in the aforesaid terms.
Sd/- JUDGE *mvs/DM Sd/- JUDGE