IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR Miscellaneous First Appeal No.8578 of 2018 (FC) BETWEEN :
SMT. GAYATHRI BHAT D/O. SHRI RAMAKRISHNA BHAT, AGED ABOUT 30 YEARS, R/AT NO.56, 4TH CROSS, K. K. LAYOUT, NEAR HARINAGAR BUS STAND, KOTHNUR, BENGALURU-560 062.
PRESENTLY RESIDING AT: C/O. MR. SATISH NAIK, NO.26, 1ST MAIN, 1ST CROSS, MUNESHWARA BLOCK, MAHALAKSHMI LAYOUT, BENGALURU-560 086.
... APPELLANT (BY SRI KAUSHIK J. KUMAR, ADVOCATE) AND :
1. SHRI. NAVEEN KUMAR BHAT S/O. SHRI GANAPATI BHAT, AGED ABOUT 32 YEARS, R/AT NO.926, 2ND FLOOR, EWS II STAGE, B-SECTOR, YELAHANKA NEW TOWN BENGALURU-560 064.
2. SHRI.PRASAD AGED ABOUT 34 YEARS, FATHER’S NAME NOT KNOWN TO THE APPELLANT, R/AT NO.56, 4TH CROSS, R.K.LAYOUT, NEAR HARINAGAR BUS STAND, KOTHNUR, BENGALURU-560 062.
... RESPONDENTS (BY SRI PRAKASH T. HEBBAR, ADVOCATE FOR R1; RESPONDENT NO.2 – NOTICE IS DISPENSED WITH VIDE ORDER DATED 22.04.2019) THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED: 26/11/2015, PASSED IN M.C. NO.3284/2014, ON THE FILE OF THE IV ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT BENGALURU, ALLOWING THE PETITION FILED U/SEC.13(1)(IA) OF THE HINDU MARRIAGE ACT, 1955.
THIS M.F.A. COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for the respective parties submit that during the pendency of this appeal the parties have negotiated a settlement and have agreed to dissolve their marriage by mutual consent.
2. That a Petition under Section 13B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’, for the sake of brevity) has been filed and further an application under Section 13B(2) of the Act has also been filed seeking waiver of statutory period of six months stipulated under said sub-section.
3. Learned counsel for the respective parties submit that the parties are present and this Court may dissolve the marriage between them by a decree of divorce by mutual consent.
4. The parties are also present before the Court.
They have been identified by their respective counsel. When queried, they submitted that during the pendency of this appeal, they have decided that their marriage be dissolved by a decree of divorce by mutual consent. Accordingly, they have filed a petition seeking divorce by mutual consent. They further submit that since the parties have separated, since the year 2013, the statutory period of six months under Section 13B(2) of the Act may be waived.
5. In this regard, learned counsel for the respondent submitted that after passing of the judgment and decree by the Family Court, the respondent has married again. Therefore, the parties seek waiver of the statutory period of six months and a joint affidavit in support of the application filed under Section 13B(2) of the Act has been filed.
6. In the circumstances, the petition filed under Section 13B(1) of the Act is taken on record and perused. The same reads as under :
“Petitioners most respectfully submit as follows :
1. The addresses of the petitioners for the purpose of issue of notices, summons, process etc., from this Hon’ble Court are as stated in the cause title. First petitioner may also be served through her counsel Shri. Kaushik J. Kumar, having his chamber at No.437/A, Ideal Homes Township, Rajarajeshwari Nagar, Bengaluru – 560 098. Similarly the second petitioner may also be served through his counsel Shri Prakash T. Hebbar, having his chamber at No.SF-17, HHMS Building, Cubbonpet Main Road, Bengaluru-560 002.
2. Petitioners are husband and wife and they are Hindus. Their marriage was solemnized on 02.06.2013 at Shree Shanmukha Subrahmanya Temple, Kolpe, Idkidu Post, Bhantwal Taluk, Dakshina Kannada District as per Hindu rites and customs. It was an arranged marriage. The marriage is not consummated and as such there are no issues from the said wedlock.
3. Petitioners submit that after a lot of incidents, trials and tribulations during the past years, petitioners realized that each other’s lifestyle does not match and that there is temperamental in-compatibility between them and that it would not be possible for the petitioners to adjust with each other. Having lived separately for more than two years after marriage, the second petitioner filed M.C. No.3284/2014 before the Hon’ble IV Additional Judge, Family Court at Bengaluru seeking a decree of divorce dissolving the marriage of the petitioners. The Hon’ble trial court passed an ex parte decree on 26.11.2015 dissolving the marriage between the petitioners. Since, the first petitioner was not served with any notice from the trial court, filed an appeal before this Hon’ble Court seeking to set aside the decree passed in M.C.
No.3284/2014 and to permit the first petitioner to contest the case. However, at the intervention of elders of both the families, petitioners realized that making allegations against each other would no longer benefit either of the spouses and therefore, the petitioners have reached a consensus to dissolve their marriage solemnized on 02.06.2013, amicably by mutual consent.
4. In consideration of the same, the parties hereto withdraw the allegations made against each other and consent for the dissolution of the marriage. The first petitioner agrees that she shall not have any monetary claim against the second petitioner regarding maintenance or alimony both interim and future as the first petitioner is gainfully employed. Further the petitioners agree that they shall not interfere in the peaceful lives of one another in any manner whatsoever. The petitioners shall not make any other or further claims against each other arising from the marital status between them in any manner whatsoever and that any claims whatsoever arising between them from the said wedlock are fully settled as agreed in this joint petition and that there is no further or other claim.
The petitioners have already exchanged their belongings and there are no other items/belongings to be exchanged between them.
5. Both the parties undertake that they will not interfere or disturb in the peaceful life of each other. Petitioners have been residing separately from 10.07.2014 and there is no chance of reunion despite efforts.
6. Petitioners submit that this petition is filed by the petitioners by mutual consent and there is no fraud or undue influence, force or coercion practiced by either of the spouses and the averments made in this petition are voluntary and by their free will and volition.
7. Petitioners have been residing in Bengaluru and are working in Bengaluru and as such this Hon’ble Court has necessary territorial jurisdiction to try, admit, entertain and dispose of this petition.
8. The cause of action to file the above petition arose during the pendency of MFA No.8578/2018, when the petitioners have mutually come to a conclusion that they cannot live happily as husband and wife on account of the temperamental incompatibility between them and as such this Hon’ble Court has necessary jurisdiction to entertain and dispose of this petition.
9. There is no delay in registering the above petition and the petition is in time.
PRAYER WHEREFORE, the petitioners most respectfully prayed that this Hon’ble Court be pleased to pass a judgment and decree in favour of the petitioners granting the following reliefs :
A) SET ASIDE the judgment and decree dated 26.11.2015, passed by the Hon’ble IV Additional Judge, Family Court at Bengaluru in M.C. No.3284/2014 and dissolve the marriage of the petitioners dated 02.06.2013 by way of a decree of divorce by mutual consent; and B) GRANT such other or further relief/s to the petitioners as this Hon’ble Court deems fit in the facts and circumstances of the case.
Bengaluru Sd/-
Date : 25.06.2019 Advocate for first petitioner.
Sd/- Sd/-
Appellant Advocate for second petitioner Sd/- Respondent.”
7. Section 13B(1) of the Act states that a petition seeking dissolution of marriage by a decree of divorce could be presented by the spouses on the ground that they have been living separately for a period of one year or more and they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
8. In the instant case, it is noted that the parties are residing separately since the year end of 2013 and that they have not lived together since then. The parties further submit that there is no chance of reconciliation and that they cannot live together as husband and wife.
9. It is also noted that the respondent husband has married, subsequent to the disposal of the matter before the Family Court. In the circumstances, we are satisfied that there is compliance of Section 13B(1) of the Act.
10. However, Section 13B(2) of the Act states that it is necessary that the matter should be kept pending for a period of six months and within the period of eighteen months from the date of filing of the petition if the Court is satisfied on hearing both the parties and on making such inquiry it could pass a decree of divorce declaring that the marriage is dissolved with effect from the date of the decree.
11. Learned counsel for the respective parties submit that an application has been filed supported by a joint affidavit seeking waiver of the six months period stipulated under Section 13B(2) of the Act. They placed reliance on a recent judgment of the Hon’ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur reported in AIR 2017 SC 4417 (Amardeep Singh) to submit that no purpose would be served in the instant case to wait for another period of six months before the marriage between the parties is dissolved. They further submit that the respondent has already married for a second time and hence there is no chance of reconciliation of the parties in this matter. Therefore, they submit that the period of six months may be waived and the application filed under Section 13B(2) of the Act be allowed.
12. Having heard learned counsel for the respective parties and on perusal of the application and bearing in mind the judgment of the Apex Court in the case of Amardeep Singh, we find that this is a fit case where the period of six months (cooling off period) is waived. Accordingly, application filed under Section 13B(2) of the Act is allowed, since we are satisfied with the contents of the petition under Section 13B(1) of the Act and also on what has been stated by the parties before this Court in response to our queries.
13. Further the respondent and his counsel submit that the respondent withdraws all allegations made against the appellant herein. Submission is placed on record.
14. The parties have no monetary or other claims against each other.
15. On hearing the learned counsel for the respective parties, we find that this is a fit case where dissolution of marriage between the parties by a decree of divorce by mutual consent could be granted and is granted. Hence, the petition under Section 13B(1) of the Act is also allowed.
16. In view of the above, the judgment and decree dated 26.11.2015 passed in M.C. No.3284 of 2014 by the IV Additional Principal Judge, Family Court at Bengaluru, is set aside.
Office to draw decree accordingly.
Sd/- JUDGE Sd/- JUDGE hnm