IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12th DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.5980 of 2016 (FC) BETWEEN :
ARUN RAO S/O.SRINIVASA RAO AGED ABOUT 34 YEARS RESIDING AT NO.U1 GANESH BLOCK SAI.VENKATESHWARA KRUPA SHESHADRIPURAM BANGALORE – 20. ... APPELLANT (BY SMT.SANGEETHA MOTILAL, ADVOCATE FOR R.HEERALAL, ADVOCATE) AND:
RAJESHWARI RAO AGED ABOUT 27 YEARS D/O.DAMODHAR RAO R/A 103, ANMOL ARCADE ASHOKNAGAR MANGALURU – 6. ...RESPONDENT (BY SRI.VENKATESH SOMAREDDI, ADVOCATE FOR SRI.P.P.HEGDE, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT 1984, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED: 18.07.2016 PASSED IN MC.NO.272/14 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, D.K., MANGALURU, ALLOWING THE PETITION FILED U/S.13(1)(ia) OF HINDU MARRIAGE ACT AND ETC., THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is listed for admission.
2. Learned counsel for the respective parties submit that, during the pendency of this appeal the parties have negotiated a settlement and they have decided to file a petition under Section 13 B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’, for the sake of brevity), seeking dissolution of their marriage by a decree of divorce by mutual consent. They submit that the impugned judgment and decree of the Family Court at Dakshina Kannada, Mangaluru, passed in M.C.No.272/2014 dated 18th July, 2016, may be modified accordingly.
3. Learned counsel for the respective parties further submit that the parties have also filed a joint application under Section 13 B(2) of the Act, which is supported by a joint affidavit, seeking waiver of six months stipulated under the said sub-Section. They submit that having regard to the latest dictum of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur (2017) 8 SCC 746, the period of six months may be waived by allowing the said application.
4. The parties are present before this Court.
They have been identified by their respective counsel.
5. When queried by this Court, they have stated that they have arrived at a settlement of their dispute by seeking dissolution of their marriage by a decree of divorce by mutual consent subject to certain terms and conditions. They further state that the appeal could be disposed of in terms of the settlement arrived at between them and that the decree of divorce by mutual consent may be granted by dissolution of their marriage.
6. Learned counsel for the respective parties have filed a petition under Section 13 B(1) of the Act supported by a joint affidavit of the parties. The same is taken on record. It is noted that it is signed by the respective parties.
7. Further the parties have filed a joint application under Section 13 B(2) of the Act read with Section 151 of the Code of Civil Procedure, 1908. The same is also signed by the parties as applicants. It is supported by a joint affidavit 8. The parties were married on 12.04.2012 at Mangaluru. They have no children. That the parties stayed together only up to 2014 and since then they are living separately. On perusal of the application and the affidavit, it is noted that they have decided to seek dissolution of their marriage by a decree of divorce by mutual consent. That there is no possibility of reconciliation and hence they have sought for waiver of the period of six months stipulated under sub-Section 2 of Section 13(B) of the Act. On perusal of the reasons assigned, we find that the parties have made out a case for waiver of the period of six months under Section 13(B)(2) of the Act. Hence, the application is allowed by placing reliance on the judgment of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur (supra).
9. The petition filed under Section 13 B(1) is also taken on record and perused. The same is extracted as under :
“4. BRIEF FACTS OF THE CASE:
The petitioners humbly submit that they are the legally wedded husband and wife respectively. Their marriage was solemnized on 12th of April 2012 at Daivajna Kalyana Mantappa, Ashoknagar, Mangaluru. It was an arranged marriage. Thereafter they have lived together for about two years at Mysore and Bangalore, put together. They do not have any issue born to us out of the said wed-lock.
That they lived happily for a few months in the beginning. But due to serious differences of opinions and incompatibility of temperaments, frequent confrontations used to arise between them, which left both of them depressed and tense. They have tried to patch up their differences many a times on their own and at time, on the intervention of elders, and tried to adjust to each other, and try and save their marriage. But some thing or the other cropped up and the discontent and uneasiness in their relationship continued. They separated after a showdown at a function at Mangalore around the first week of May 2014. Ever since they have been living separately.
5. That the Second Petitioner filed a petition for divorce at Mangalore, before the Hon’ble Family Court, Mangalore, D.K., being numbered as M.C. No.272/2014 under Section 13 1(i a) & (i b) of Hindu Marriage Act, 1955, and initiated a few other proceedings against the First petitioner and his family members, which are pending at Mangalore. The Divorce Petition was allowed by the Hon’ble Trial Court under Section 13 1(i a) and rejected under 13 1(i b), along with granting alimony of Rs.Eight Lakhs to the Second Petitioner.
6. That the First Petitioner has filed the above MFA challenging the Judgement and Decree passed 18/25-07-2016, by the Hon’ble Trial Court at Mangalore, in M.C. No.272/2014 allowing the said Petition for divorce under Section 13 1(i a) and granting permanent alimony of Rs.Eight Lakhs to the Second Petitioner.
7. The petitioners state that with the intervention and advice of elders, relations, well-wishers and common friends, they have decided to compromise the above matter by filing the above petition before this Hon’ble Court, in the above MFA, under Section 13 B (1) of the Hindu Marriage Act, 1955, setting out the terms of their compromise.
8. The Second Petitioner has agreed to withdraw all the pending cases before the Hon’ble Lower Courts and Authorities at Mangalore, filed by her and pending against the First Petitioner and his family members. They are:
(i) The Execution Case No.44/2016, filed to execute the Judgement and Dcree passed in M.C. No.272/2014 now pending before the Hon’ble Family Court, Mangalore, D.K. against the First Petitioner.
(ii) The Petition filed under 12 of Protection of Women from Domestic Violence Act 2005 in Cr. M.C. No.65/2014 which is pending before the J.M.F.C. (II Court), Mangalore, D.K. against the First Petitioner and his family members.
(iii) The Complaint in C.C. No.2873/2014 which is pending before the J.M.F.C. (II Court), Mangalore, D.K. against the First Petitioner.
9. The Second Petitioner has agreed to restrict her claim for alimony, maintenance, etc., present and future, to Rs.Two Lakhs only, out of which she has already withdrawn Rs.One Lakh that was deposited by the First Petitioner in Court. The First Petitioner will pay the balance of Rs.One Lakh before this Hon’ble High Court of Karnataka by way of D.D. dated 11-12-2019 bearing No.005371, drawn on HDFC Bank Ltd., in favor of the second Petitioner, whose name has been mentioned as Rajeshwari Rao M, on her request.
The Second Petitioner has agreed to give up her rights if any towards the balance of the amount ordered by the Hon’ble Trial Court while dissolving the marriage between us.
10. The second petitioner humbly submits that she will not press for the ground of cruelty and is willing to amicably settle the dispute as prayed for in this petition.
11. The petitioners humbly submit that they shall co-operate with each other to see that all the litigations pending before different courts involving them & the family members of the First petitioner are withdrawn and settled in accordance with law.
12. The Petitioners submit that there is no collusion between them and this decision is not due to any undue influence, force or coercion from any quarters whatsoever on them, but due to the realization from the words of wisdom of their well-wishers and the awareness that they should separate amicably and move on in life.
13. The petitioners submit that after these five and half years of separation and tussle, they feel that it is impossible for them to live together again and it is in the interest of both of them that they should part ways and live their lives without any interference from one to the other. Hence this Petition.
14. The cause of action for the petition arose when the petitioners were married on 12-04- 2012, thereafter on 2/3-05-2014 when they separated after a showdown at a function at Mangalore, and on the date of filing of the divorce petition, and thereafter on the date of judgment & decree in the said petition, i.e., 18/25-07-2016, and on the date of filing of this petition.
15. A fixed court fee of Rs. ………….. Is paid on this petition.
Wherefore, the petitioners pray that this Hon’ble Court may be pleased to pass a judgment and decree recording the terms of their settlement set out in this petition as stated once again hereunder and (1) dissolve their marriage under Section 13 B (1) of the Hindu Marriage Act, 1955 in view of paragraph 10 supra.
(2) Fix the alimony to a total of Rs.2,00,000/-, out of which the First petitioner has already paid Rs.One Lakh in Court and agreed to pay balance of Rs.1,00,000/- before this Hon’ble Court by way of D.D. as stated at paragraph 9 supra, i.e., D.D. bearing No.00 5371 dated 11/12/2016 drawn on HDFC Bank.
(3) Direct the second petitioner to withdraw the pending cases at Mangalore as listed at paragraph 8 supra and (4) Direct both the parties to cooperate with each other to settle the matters in accordance with law as agreed between them at the paragraph 11 supra to meet the ends of justice and equity.
Sd/- Sd/-
PETITIONER No.1 PETITIONER No.2 VERIFICATION We (1) Sri.Arun Rao, the First Petitioner and (2) Smt.Rajeshwari Rao, the second petitioner, hereby verify that the averments made above at paragraphs 1 to 15 are true and correct to the best of our knowledge, belief and information and that this is our name and signatures.
Sd/- Sd/-
PETITIONER No.1 PETITIONER No.2 Sd/- Sd/-
ADVOCATE FOR PETITIONER No.1 ADVOCATE FOR PETITIONER No.2 BANGALORE:
DATED: 12/12/2019”
10. We have perused the terms and we find that they are lawful and there is no legal impediment for accepting the same.
11. Learned counsel for the appellant submits, a sum of Rs.1,00,000/- is being paid to the respondent – wife vide Demand Draft No.00537 dated 11.12.2019 in favour of the respondent, drawn on HDFC Bank. The same is handed over by the learned counsel for the appellant to learned counsel for the respondent, who has in turn handed over to the respondent, who acknowledges receipt of the same. That earlier, a sum of Rs.1,00,000/- was paid to the respondent while depositing the same before the Family Court at Mangaluru, and the same has been withdrawn by the respondent. That the respondent has no further claim whatsoever against the appellant – husband. That the parties have also decided to close various other cases pending between them, inter se, in accordance with law and as stated in the petition filed under Section 13 B(1) of the Act.
12. In the circumstances, the judgment and decree of the Family Court, Dakshina Kannada, Mangaluru in M.C.No.272/2014 dated 18th July, 2016 is substituted by granting a decree of divorce by mutual consent by dissolving the marriage between the parties that took place on 12.04.2012 at Daivajna Kalyan Mantap, Ashoknagar, Mangaluru. That in toto a sum of Rs.2,00,000/- is paid by the appellant to the respondent towards permanent alimony and that the respondent has no further claim as against the appellant.
The petition filed under Section 13 B(1) of the Act is allowed.
Registry is directed to draw a decree in the aforesaid terms under Section 13 B(1) of the Act.
Sd/- JUDGE Sd/- JUDGE Mgn/-