IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 PRESENT THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A.No.3636/2018 (FC) BETWEEN:
SMT. PUSHPALATHA W/O. SRI R. MADESH @ MADESHU, AGED ABOUT 35 YEARS, RESIDING AT C/O. VENKATESH, NO.114/1, BHUYUVANESH LAYOUT, MUTHANALLUR CROSS, SULIKUNTE VILLAGE, SARJAPURA MAIN ROAD, K.R. PURAM HOBLI, BANGALORE EAST TALUK. ... APPELLANT (BY SRI SOWRABA JEEVALA L.M., ADVOCATE) AND:
SRI R. MADESH @ MADESHU S/O. LATE RANGE GOWDA, AGED ABOUT 45 YEARS, RESIDING AT: KAGGALIPURA VILLAGE, SOSALE HOBLI, T. NARASIPURA TALUK, MYSORE DISTRICT. ... RESPONDENT (BY SRI SIDDANANJAIAH, ADVOCATE FOR C/R) ****** THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT, 1984, AGAINST THE JUDGMENT AND DECREE DT.07/03/2018 PASSED IN M.C.NO.2102/2013 ON THE FILE OF THE IV ADDL. PRL. JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION U/SEC.13(1)(ia), (ib) OF THE HINDU MARRIAGE ACT, 1955.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Appellant is the wife, while respondent is the husband. Appellant had filed M.C.No.2102/2012 before the IV Addl. Prl. Judge, Family Court, Bangalore, under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 (hereinafter, referred to as “the Act”, for the sake of brevity), seeking dissolution of her marriage with the respondent by a decree of divorce. By judgment and decree dated 07/03/2018, the said petition has been dismissed. Being aggrieved, she has preferred this appeal.
2. Learned counsel for respective parties submit that during the pendency of this appeal, the matter was referred to the Bangalore Mediation Centre (BMC) and the parties have arrived at a settlement. That the respondent has agreed for dissolution of her marriage by a decree of divorce by mutual consent to which the appellant has also agreed. That the respondent shall pay a sum of Rs.6,50,000/- by a Demand Draft in full and final settlement of his liability in obligation to the minor daughter born out of the wed-lock. That the appellant has no claim over the respondent. They submit that apart from the terms and conditions and the settlement arrived at before the BMC, they have filed a petition under Section 13-B(1) of the Act and an application under Section 13-B(2) of the Act. That the appeal may be disposed of in terms of the aforesaid petition and in terms of the settlement arrived at between the parties before the BMC.
3. The parties are present before this Court.
They have been identified by their respective counsel. They also submit that the appeal may be disposed of in terms of the settlement arrived at between the parties before the BMC and also in terms of the petition filed by them in terms of Section 13-B(1) of the Act, by dispensing with the period of six months stipulated under Section 13- B(2) of the Act. The memorandum of agreement under Section 89 of the Code of Civil Procedure read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005, signed by the respective parties, which bears seal of the BMC is taken on record and the same reads as under:-
“MEMORANDUM OF AGREEMENT UNDER SECTION 89 OF THE CODE OF CIVIL PROCEDURE READ WITH RULES 24 AND 25 OF THE KARNATAKA CIVIL PROCEDURE (MEDIATION) RULES, 2005.
I. The parties above named submit as follows:
1. The above Appeal has been filed by the Appellant/Petitioner u/s 19(1) of the Family Court Act, against the Judgment and Decree dated 07.03.2018 in M.C.No.2102/2012 passed by the IV Addl. Principal Judge Family Court, Bengaluru, wherein the petition was dismissed.
2. The Appellant and the Respondent were married on 26.11.2007 at Lakshmi Narayana Samudaya Bhavana, Kithanganahalli Hennagara Main Road, Anekal Taluk, as per Hindu rites and customs.
3. Both the parties state that they have been blessed with a child by name Jeevitha, now aged about 10 years, presently under the care and custody of the Appellant/mother.
II. The Appeal was referred to mediation with the consent of the parties by the Hon’ble High Court of Karnataka, Bengaluru and they have mutually agreed to the following terms and conditions:-
i) The Appellant/wife has sought for divorce and the Respondent/husband consent to the divorce and accordingly the marriage solemnized on 26.11.2007 at Lakshmi Narayana Samudaya Bhavana, Kithanganahalli Hennagara Main Road, Anekal Taluk, as per Hindu rites and customs be dissolved by decree of divorce.
ii) The child Jeevitha is under the care and custody of the Appellant/Mother and continue to be so in future, for which the Respondent has no objection for the same.
iii) The Appellant/wife agrees that since she is seeking for dissolution of the marriage, she is not entitled to claim any maintenance/permanent alimony whatsoever. Further, agree that she will not claim any suit or proceeding to claim maintenance/permanent alimony in future.
iv) The respondent/father of the child “Jeevitha” has agreed to pay a sum of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only) to the minor child “Jeevitha” by way of Demand Draft towards her maintenance, medical, educational and all other expenses, before the Hon’ble High Court of Karnataka at the time of recording the settlement.
v) The Appellant/wife is a natural guardian of the child. She agrees to withdraw the Crl. Misc. No.120/2017 pending on the file of II ACJ, Bengaluru Rural, Bengaluru.
4. Apart from the above, both the parties shall not have any claims of whatsoever nature against each other including moveable or immoveable properties belonging to each other either past, present or future.
5. Both the parties state that there has been no collusion or force, fraud or any undue influence in filing the above petition and entering into this settlement/agreement in the aforesaid manner.
6. Both the parties shall not interfere with each other’s life in any manner, in future.
II. In view of the aforesaid agreement entered into between the parties, the parties humbly pray that this Hon’ble Court be pleased to pass judgment and decree of divorce dissolving the marriage solemnized between the parties on 26.11.2007 at Lakshmi Narayana Samudaya Bhavana, Kithanganahalli Hennagara Main Road, Anekal Taluk in terms of this settlement/agreement.
III. Parties will appear before this Hon’ble High Court of Court, Bangalore, for passing orders in terms of the settlement/agreement.”
4. The parties have also filed a petition under Section 13-B(1) of the Act and the same is taken on record, which is signed by the parties as well as the respective counsel, supported by an affidavit filed by the parties. The parties have also filed an application under Section 13-B(2) of the Act, which is supported by an affidavit filed by both parties jointly and the same is taken on record.
5. The parties have agreed to certain terms and conditions in the memorandum of settlement arrived at before the BMC, the most important being that their marriage be dissolved by a decree of divorce by mutual consent, since the petition filed by the appellant before the trial Court seeking divorce was dismissed. The parties have agreed to file the petition under Section 13-B(1) of the Act. It is noted that the appellant and the respondent were married on 26/11/2007 and out of the wed-lock, they have a minor daughter by name Jeevitha. That since the year 2012 the parties have been living separately. The parties submit that they have been living separately since the year 2012 and that there is no chance of any reconciliation between them, so as to live together in a marital relationship and therefore, they have sought for dissolution of their marriage by a decree of divorce by mutual consent. We are satisfied with the contents of the said petition filed under Section 13-B(1) of the Act, which reads as under:-
“MEMORANDUM OF MUTUAL CONSENT PETITION UNDER SECTION 13-B OF THE HINDU MARRIAGE ACT, 1955 The petitioners pleased to submit as follows:-
1. The Petitioners 1 and 2 are wife and husband, their marriage was solemnized on 26/11/2007 as per the Hindu Rites and customs prevailing in their community at Lakshmi Narayana Samudaya Bhavana, Kithaganahalli Hennagara Main Road, Anekal Taluk. After the marriage they begun their marital life in the matrimonial home and out of the marriage wedlock, the Petitioner No.1 gave birth to a female child namely Jeevitha who born on 08/07/2009, presently she is aged about ten years.
2. It is submitted that, due to differences of opinion between the Petitioners 1 and 2 they could not able to continue the marital life, accordingly the Petitioner No.1 has filed the M.C.No.2102/2012 on the file of the IV Addl. Principal Family Judge, Bangalore, under Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act of 1955 against the Petitioner No.2 praying to dissolve the marriage with the Petitioner No.2 and the said petition came to be dismissed on merits.
3. It is submitted that, thereafter the petitioner No.1 has challenged the dismissal of the petition by filing a Misc. First Appeal before the Hon’ble High Court of Karnataka in MFA No.3636/2018 against the Petitioner No.2 and the said Appeal came before this Hon’ble Court and this Hon’ble Court has referred the above appeal before the Mediation Centre and by the consent of both the parties, the entire issue is settled through mediation report, the Petitioner No.2 has agreed to pay a sum of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only) by way of Demand Draft in the name of the minor child Jeevitha, who is now in the custody of the Petitioner No.1 as full and final settlement of the maintenance of the minor child Jeevitha, except that no other maintenance and/or any other claim either money or any movable or immovable asset for past, present or future in any manner and they have no any claims whatsoever against each other. After disposal of the matter in terms of settlement, the Petitioner No.1 undertakes to withdraw the Crl. Misc. Petition No.120/2017, pending on the file of 2ND ACJM, Bangalore Rural District, Bangalore. Since it is already agreed, before the mediation in the same terms and conditions both Petitioners have agreed to dissolve the marriage on the same terms and conditions in this petition/appeal and both of them voluntarily agreed without any coercion or force as started in this petition.
4. It is submitted that there is no any force from anybody, fraud or undue influence in presenting this petition and this is not a collusive petition between the petitioners. The petitioners have been living separately for more than 9 years and they have not been able to live together on the reasons explained above, accordingly they have mutually agreed that the marriage should be dissolved.
PRAYER Wherefore the petitioners pray this Hon’ble court be pleased to allow this petition and pass an order dissolving the marriage of the petitioners dated 26/11/2007 held at Lakshmi Narayana Samudaya Bhavana, Kithaganahalli Hennagara Main Road, Anekal Taluk in terms of mediation agreement and pass such other order as this Hon’ble court deems fit in the circumstances of the case and in the interest of justice and equity.”
6. Learned counsel for respective parties further submit that there would be no legal impediment for granting a decree of divorce by mutual consent immediately having regard to the latest dictum of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur reported in AIR 2017 SC 4417 and therefore, they submit that this Court may dispense with the period of six months stipulated under Section 13-B(2) of the Act and allow the said application and consequently, accept the petition filed under Section 13-B(1) of the Act and grant of divorce by mutual consent on the terms and conditions accepted by them before the BMC.
7. We find force in the submission made by learned counsel for respective parties inasmuch as the parties are not residing together since the year 2012 and there is no chance of reconciliation between them and they have also agreed to dissolve their marriage on certain terms and conditions by way of a settlement arrived at between them before the BMC.
8. In the circumstances, we dispense with the six months period (cooling off period), as stipulated under Section 13-B(2) of the Act and application filed by the parties under Section 13-B(2) of the Act is allowed.
9. We have perused the terms and conditions arrived at between the parties. The appellant submits that she has no claim over the respondent towards her maintenance or any other claim. That the respondent ought to pay a sum of Rs.6,50,000/- for the maintenance of the minor child. Respondent’s counsel submits that a sum of Rs.6,50,000/- is being paid in the name of and to the minor child, by way of Demand Draft No.701862 dated 05/08/2019, issued by Syndicate Bank, Metagalli Branch, Mysore, i.e., in the name of Jeevitha - minor daughter of the appellant and respondent. The Demand Draft is handed over by learned counsel for respondent to learned counsel for appellant, who has handed over the same to the appellant and the appellant acknowledges receipt of the same. Since the amount of Rs.6,50,000/- is paid in the name of Jeevitha – minor daughter, the same shall be deposited by the appellant in any Nationalized Bank or Post Office, in the name of Jeevitha, till she attains the age of majority. However, the interest accrued on the said deposit shall be drawn for the purpose of educational and other expenses of the minor child.
10. It is needless to observe that the said deposit shall be maintained till Jeevitha attains the age of majority. It is clarified that deposit need not be in a single term deposit and till she attains the age of majority, it could be for a period of five years, three years or in any other term depending on highest rate of interest, it would fetch with automatic renewal an its maturity, till Jeevitha attains majority.
11. On perusal of the terms and conditions of the settlement arrived at between the parties, we find that the same are lawful. We do not find any legal impediment in accepting the same. In the circumstances, appeal is disposed of in terms of the settlement arrived at between the parties.
Registry to draw decree under Section 13-B(1) of the Act.
Parties to bear their respective costs.
Sd/- JUDGE *mvs Sd/- JUDGE