IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN M.F.A. No.7832/2014 C/W M.F.A. No.7545/2014 (FC) IN M.F.A. No.7832/2014 BETWEEN:
MRS. MOUSUMI MUKHERJEE LALL, W/O. MR. RANJITH LALL, AGED ABOUT 50 YEARS, HAVING PERMANENT ADDRESS AT NO.487, PUSHPA APARTMENTS, FLAT NO.102, SHAHEED HEMANTHA KUMAR BASU SARANI, JAWPORE JAGADISHPALLI, KOLKATTA – 70074. ... APPELLANT (BY SRI VASANTH V. FERNANDES, ADVOCATE) AND:
MR. RANJITH LALL, S/O. LATE AJIT KUMAR, AGED ABOUT 55 YEARS, WIPRO TECHNOLOGIES, PLOT NO.72, KEONICS ELECTRONICS CITY, HOSUR MAIN ROAD, BANGALORE – 560 100, EMPLOYEE ID: 101938. ... RESPONDENT (BY SRI P.B. APPAIAH, ADVOCATE) ***** THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 02.09.2014 PASSED IN M.C.NO.572/2007 ON THE FILE OF THE V ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(iii) OF HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.
IN M.F.A. No.7545/2014 (FC) BETWEEN:
MR. RANJITH LALL S/O. LATE AJIT KUMAR LALL, AGED ABOUT 48 (NOW 55) YEARS, RESIDING AT EMBASSY MEADOWS, FLAT NO.151, 8TH CROSS, 1 ‘A’ MAIN, S.T. BED, KORAMANGALA 4TH BLOCK, BENGALURU – 560 034. ... APPELLANT (BY SRI P.B. APPAIAH, ADVOCATE) AND:
MRS MOUSAMI MUKHERJEE LALL, W/O. MR. RAJITH LALL, AGED ABOUT 42 (NOW 49) YEARS, PRESENTLY RESIDING AT NO.487, SHAHID HEMANT BASU SARANI, FLAT NO.102, PUSHPA APARTMENTS, KALINDI HOUSING ESTATE, LAKE TOWN, KOLKATA – 700 074, WEST BENGAL. ... RESPONDENT (BY SRI VASANTH V. FERNANDES ADVOCATE) ***** THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 02.09.2014 PASSED ON M.C.NO.572/2007 ON THE FILE OF THE V ADDITIONAL PRINCIPAL JUDGE, BANGALORE, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(iii) OF HINDU MARRIAGE ACT R/W SECTION 27(1)(e) OF SPECIAL MARRIAGE ACT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T These appeals are listed for Admission. MFA.No.7832/2014 has been filed by the wife, while MFA.No.7545/2014 has been filed by the husband. Both the appeals assail the judgment and decree passed by V Addl. Prl. Judge, Family Court, Bangalore, dated 02/09/2014 in M.C.No.572/2007. The said petition was filed by the husband under Section 27(1) (e) of the Special Marriage Act, 1954 [hereinafter, referred to as “the Act”], for dissolution of his marriage with the respondent – wife, which was solemnized on 13/12/1999. The couple have no children.
2. Learned counsel for respective parties submit that during the pendency of this appeal, parties have negotiated a settlement and today, they are reporting settlement. They submit that the parties have agreed to dissolve their marriage by mutual consent under Section 28(1) of the Act. They further submit that they have filed an application to that effect which is supported by a joint affidavit. Further, an application has been filed under Section 28(2) of the said Act, seeking dispensation or waiver of the statutory period of six months for final consideration of the petition for divorce by mutual consent. The said application is also supported by a joint affidavit.
3. In short, the contents of the settlement are, firstly, that the parties have agreed to dissolve their marriage by a decree of divorce by mutual consent. Secondly, that the respondent - husband would pay a sum of Rs.45,00,000/- to the wife in full and final settlement of the claims as permanent alimony and maintenance for the wife. That a sum of Rs.40,00,000/- shall be paid in the first instance, by way of Demand Draft bearing No.732705 dated 15/07/2019 issued by Citibank N.A., Bengaluru. That a balance sum of Rs.5,00,000/- shall be paid on conclusion of the proceedings before the 43rd Addl. Chief Metropolitan Magistrate, Bengaluru, either by compounding or by the respondent filing a petition under Section 482 of the Criminal Procedure Code, 1973 before this Court, seeking quashing of further proceedings in the said case. The appellant - wife has agreed to co-operate in the conclusion of the said proceeding.
4. The parties are present before this Court and they have been identified by their respective counsel.
5. Learned counsel for respective parties submit that dispute between the parties has been settled and therefore, the appeals may be disposed of in terms of the settlement arrived at between the parties and in terms of what has been stated above, succinctly. When queried, the parties submit that they have indeed agreed to settle the dispute agreeing for dissolution of marriage by a decree of divorce by mutual consent and also, the monetary settlement as referred to above and in the aforesaid terms.
6. The application filed under Section 28(1) of the Special Marriage Act, 1954 r/w Section 151 of Code of Civil Procedure, 1908 is taken on record. It is signed by the respective parties and their counsel.
7. Similarly, the application filed under Section 28(2) of the aforesaid Act is taken on record. The same is supported by a joint affidavit and it is signed by both parties. A joint memo, which is also signed by the parties and their respective counsel is also taken on record.
8. Section 28 (1) of the Act states that subject to the provisions of the Act and the rules made thereunder, a petition for divorce could be presented to the District Court (which would also include the High Court), by both parties together on the ground that they have been living separately, for a period of one year, that they have not been able to live together and they have mutually agreed that their marriage be dissolved by a decree of divorce.
9. It is stated at the Bar that parties have been living separately for over ten years, to be precise, from December 2008, that the parties have not been able to live together and that they have mutually agreed to dissolve their marriage by a decree of divorce.
10. Sub-section (2) of Section 28 of the Special Marriage Act states that on the motion of both parties made not earlier than six months after the date of the petition under sub-section (1) thereof and if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that the marriage has been solemnized under the Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
11. Learned counsel for respective parties submit that having regard to the recent dictum of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [AIR 2017 SC 4417], the cooling off period of six months prescribed under Section 28(2) may be waived. They submit that though the said judgment has been passed under Section 13-B of the Hindu Marriage Act, 1955, the said dictum could also be applied to sub- section (2) of Section 28 of the Act.
12. It is noted that the parties herein have been separated for over a decade. The husband is living in Bengaluru and the wife at Kolkata. That there is no chance of any reconciliation between the parties and that they have agreed mutually to seek divorce by mutual consent. In the circumstances, by applying the said dictum to the present case, as we are satisfied with the reasons for seeking waiver of the period of six months stipulated under Section 28(2) of the Act, the application filed under Section 28(2) of the Act is allowed.
13. The application under Section 28(1) of the Act, which is supported by the joint affidavit is perused. The relevant paragraph Nos.5 to 11 of the joint affidavit reads as under:-
“5. We submit that in our aforesaid Joint Memo dated 15-7-2019 we have agreed on the following terms of settlement:
a) That the marriage between us was solemnized on 13-12-1999 under the provisions of the Special Marriage Act, 1954, before the Marriage Officer, Alipore Sadar Sub-Division, Kolkata, and we do not have any children from our marriage;
b) That we have been residing separately since December 2008, i.e., for a period of more than 10 years prior to the filing of this application and out Joint Memo;
c) That there is no possibility of reconciliation between us and our marriage has irretrievably broken down and, hence, both of us mutually and out of our own free will and volition agree that our marriage be dissolved by a decree of divorce by mutual consent under Section 28(1) of the Special Marriage Act;
d) That we withdraw all the allegations made against each other in all the cases filed and / or pending between us;
e) The first of us agrees to pay and the second of us agrees to receive a sum of Rs.45,00,000/- (Rupees Forty five lakhs only) in full and final settlement of the claims for permanent alimony and maintenance and on all other accounts that the second of us has against the first of us, including the arrears of maintenance and other amounts payable by the first of us to the second of us in terms of the order dated 13-2-2013 passed by the learned Metropolitan Magistrate, MMTC – I, Bengaluru, in Crl.Misc. No.45/2008 and the order dated 28-2-2015 passed by the learned Presiding Officer & Addl. Sessions Judge, Fast Track Court – III, Bengaluru, in Crl.A. No.25057/2013;
f) The first of us agrees to pay the said sum of Rs.45,00,000/- (Rupees Forty five lakhs only) to the second of us in the following manner:
(i) A sum of Rs.40,00,000/- (Rupees Forty lakhs only) at the time of presenting this application and our Joint Memo before this Hon’ble Court which the first of us is doing on this day by Demand Draft No.732705 dated 15-7-2019 issued by Citibank N.A., Bengaluru, the receipt of which the second of us hereby acknowledges;
(ii) A sum of Rs.5,00,000/- (Rupees Five lakhs only) by Demand Draft at the time of the disposal of C.C. No.23026/2008 pending between us on the file of the learned 43rd Addl. Chief Metropolitan Magistrate, Bengaluru, either by compounding the said case before the learned Magistrate or by filing a petition before this Hon’ble Court under Section 482 of the Criminal Procedure Code to quash all further proceedings in the said case;
g) Prior to or at the time of disposal of C.C. No.23026/2008, the first of us shall return all the personal belongings of the second of us such as clothes, jewelry, documents and the like which were in commercial storage and the second of us shall acknowledge receipt of the same;
h) Both of us agree that the decree of divorce granted by this Hon’ble Court in terms of this application and our Joint Memo will come into effect on the date that the first of us pays to the second of us the balance sum of Rs.5,00,000/- (Rupees Five lakhs only) and returns all the personal belongings of the second of us as detailed above;
6. Either of us shall be at liberty to move this Hon’ble Court thereafter to report full and final settlement of our claims against each other and to get a Final Order from this Hon’ble Court for a Decree of Divorce by Mutual Consent to be drawn up in terms of this application and our Joint Memo.
7. In view of the above settlement between us, we have further agreed that:
a) M.F.A. No.7832/2014 filed by the second of us against the first of us before this Hon’ble Court shall stand disposed of as settled out of Court;
b) Crl.R.P. No.1365/2015 filed by the first of us against the second of us before this Hon’ble Court shall stand disposed of as settled out of Court;
c) Crl.Misc. No.127/2013 filed by the second of us against the first of us before the learned Metropolitan Magistrate, Traffic Court – I, Bengaluru, shall stand disposed of as settled out of Court.
8. The second of us agrees to cooperate in the disposal of C.C. No.23026/2008 on the file of the learned 43rd Addl. Chief Metropolitan Magistrate, Bengaluru, either by appearing before the learned Magistrate to compound the said case or by appearing before this Hon’ble Court and consenting to have all further proceedings in the said cases quashed.
9. Both of us expressly agree that all accounts between us are settled in full in the terms set out hereinabove and all cases between us shall stand disposed of as settled out of Court by virtue of the settlement arrived at between us as detailed in this application and in our Joint Memo dated 15-7-2019.
10. We submit that we have entered into the Joint Memo dated 15-7-2019 and agreed to the settlement of all the cases between us of our own free will and volition and without any undue influence being exerted on us.
11. In view of the foregoing, we respectfully submit that the petition for divorce bearing M.C. No.572/2007 filed by the first of us against the second of us before the learned V Additional Principal Judge, Family Court, Bengaluru, under Section 13(1)(iii) of the Hindu Marriage Act read with Section 27(1)(e) of the Special Marriage Act, be treated by this Hon’ble Court as a petition for divorce by mutual consent under Section 28(1) of the Special Marriage Act filed by both of us and the above appeal may be disposed of by this Hon’ble Court by granting us a decree of divorce by mutual consent and dissolving the marriage solemnized between us on 13-12-1999 under the provisions of the Special Marriage Act before the Marriage Officer, Alipore Sadar Sub-Division, Kolkata, on the terms detailed hereinabove and in our Joint Memo dated 15-7-2019.”
14. On perusal of the terms and conditions extracted above, we are satisfied that they are lawful and that there is no legal impediment for allowing the application under Section 28(1) of the Act. The respective parties have also agreed to comply with the terms and conditions referred to above.
15. In the circumstances, MFA.No.7545/2014 is disposed of and the application filed under Section 28(1) of the Act is allowed. The marriage solemnized between the parties is dissolved by mutual consent. Demand Draft bearing No.732705 dated 15/07/2019 issued by Citibank N.A., Bengaluru, for a sum of Rs.40,00,000/- [Rupees forty lakhs only], is handed over by the appellant to the respondent. The receipt of which is acknowledged by the respondent.
16. In view of the disposal of MFA.No.7545/2014 in the aforesaid terms, MFA.No.7832/2014 would not survive for consideration and the same accordingly, stands disposed.
In view of disposal of the appeals, all pending applications stand disposed.
Office to draw a decree under Section 28 (1) of the Act.
Sd/- JUDGE Sd/- JUDGE *mvs