IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ MISCELLALNEOUS FIRST APPEAL NO.5156 OF 2017 (FC) BETWEEN:
SMT. SADHANA B.S. W/O. UMESH KUMAR D D/O. SEVA NAIK AGED 40 YEARS R/AT BEVANAHALLI VILLAGE BHARMA SAGAR POST CHITRADURGA TALUK & DISTRICT. PIN – 577 519.
(BY SRI N. PRAKASH, ADVOCATE FOR M/S.MENTO ISSAC, ADVOCATE) AND:
... APPELLANT SRI UMESH KUMAR D S/O SRI DYAMAPPA AGED ABOUT 42 YEARS RESIDING AT NO.10/2, 4TH BLOCK GURUGUNTE PALYA BENGALURU – 22.
(BY SRI. M.A. VENUGOPAL, ADVOCATE) ... RESPONDENT THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 02.11.2016 PASSED IN M.C. NO.3821/2015 ON THE FILE OF THE VI ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, ALLOWING THE PETITION FILED U/S 13(1)(ia) OF THE HINDU MARRIAGE ACT.
THIS MFA 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 matter was referred to the Bengaluru Mediation Centre (BMC) and the parties have negotiated a settlement and the appeal could be disposed of in terms of the settlement arrived at between the parties. They further submit that Memorandum of Agreement under Section 89 of the Code of Civil Procedure r/w Rules 24 and 25 the Karnataka Civil Procedure (Mediation) Rules, 2005 has been filed and that the appeal could be disposed of in terms of the aforesaid settlement.
3. Learned counsel for the respective parties further submit that the judgment and decree of the VI Additional Principal Judge, Family Court, Bengaluru dated 02.11.2016 passed in MC No.3821/2015 may be confirmed.
4. Learned counsel for the appellant submits that the appellant has no objection for the said judgment and decree being confirmed subject to compliance of the other terms and conditions of the settlement by the respondent - husband.
5. Learned counsel for the respondent submits that one of the terms and conditions of the settlement is payment of `13,00,000/- in toto to the appellant, being `6,50,000/- to her and balance `6,50,000/- in favour of the second child, Dheeraj presently six years. He submits that Two Demand Drafts are being handed over today.
6. Learned counsel for the respective parties further submit that the first son, Master Suraj Naik, aged twelve years studying in VI standard will be in the permanent custody of the respondent – father, while the second son, Master Neeraj @ Nitin Naik U, aged nine years studying in III standard in Davanagere shall be in the custody of the mother. They further submit that the parties have also arrived at an arrangement for visitation rights which are being reserved to both the parties in respect of meeting the other child. Hence, learned counsel for the respective parties submit that the appeal may be disposed of in terms of the settlement arrived at between the parties.
7. The parties are present before this Court.
They have been identified by their respective counsel. When queried by this Court, they have stated that they have indeed entered into a settlement, so as to resolve the dispute interse pending between them that they have arrived at a settlement on their own free volition without there being any undue influence from any side. They further said that the appeal could be disposed of in terms of the settlement and that they would be abide by the terms and conditions of the agreement.
8. In the circumstances, memorandum of settlement arrived at between the parties dated 05.07.2019 is taken on record. It is noted that the same is signed by the parties and their respective counsel. The terms of settlement 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.
The parties above named submit as follows:
I. The above appeal is filed by the appellant u/s 19 (1) of the Family Courts Act against the judgment and decree dated 02.11.2016 passed in M.C. No.3821/2015 on the file of the VI Addl. Prl. Judge, Family Court, Bengaluru, filed by the respondent for decree of divorce against the appellant herein.
II. The above appeal has been referred to mediation for resolving the dispute between the parties. During the course of mediation, the parties along with their respective advocates were present, they have resolved their disputes on the following terms and conditions.
1. That the appellant and the respondent are the wife and husband, the marriage between them was solemnized on
Hindu rites and customs.
2. That due to irreconcilable differences and incompatibility of temperaments, the appellant and the Respondent have been living separately since four years. There is absolutely no chance of reunion amongst themselves. The appellant has agreed to withdraw the above appeal.
3. The parties state that they have two sons from the said wedlock by name Master Suraj Naik, now aged 10 years under the care and custody of the respondent/father and Master Neeraj @ Nitin Naik.U, now aged 8 years, under the care and custody of the Appellant/mother and shall continue to be in their respective custody in future, for which the other party has no objection.
4. However the parties are at liberty to visit and meet the minor son in the custody of the other party once in a month with prior intimation to each other as per their mutual convenience without disturbing their studies. The parties have agreed to share school vacations of the minor children equally among them.
5. In view of this settlement, the respondent has agreed to pay a total sum of Rs.13,00,000/- (Rupees Thirteen Lakhs Only) to the appellant towards her permanent alimony/maintenance and also towards the maintenance of the minor younger son Master Neeraj @ Nitin Naik U. The aforesaid amount will be paid by way of Demand Draft within two months from the date of this agreement before the Hon’ble Court at the time of reporting this settlement. Out of the agreed amount, the appellant has agreed to deposit a sum of Rs.6,50,000/- (Rupees Six Lakh Fifty Thousand Only) in a fixed deposit in the name of the minor younger son Master Neeraj @ Nitin Naik U in any nationalized bank till he attains the age of majority by mentioning her name as guardian for the said FD and is at liberty to withdraw the interest accrued on the said deposit for the welfare of the minor son from time to time. The appellant shall submit a copy of the FD to the Hon’ble Court for compliance.
6. In view of this settlement, both the parties have agreed to withdraw or cooperate in closing/quashing/disposal of the following cases filed by them against each other in accordance with law:-
a) C.C.52720/2016 pending before XI ACMM at Bengaluru filed by the respondent against the appellant herein for the offences punishable under Section 307, 309 of IPC.
b) C.C.No.52702/2016 pending before XI ACMM at Bengaluru filed by the appellant against the respondent herein for the offences punishable under Section 498-A r/w Section 34 of IPC.
c) Crl.Misc.95/2016 pending before MMTC-I Court at Bengaluru filed by the appellant against the respondent and his family members under DV Act as not pressed.
7. Apart from what is agreed above, the appellant and the respondent state that, they have no claims of whatsoever nature against each other towards maintenance/permanent alimony either past, present or future and also have no claims over the movable/immovable properties belonging to each other.
8. Both the parties state that there has been no collusion or force, fraud or any undue influence in entering into this settlement/agreement in the aforesaid manner.
9. Both the parties shall not interfere with each other’s life in any manner whatsoever, in future.
III. In view of the aforesaid agreement entered into between the parties, the parties humbly pray that this Hon’ble Court be pleased to pass necessary orders, in terms of and this settlement/agreement.
IV. The appellant hereby agrees that the judgment and decree of divorce dated 02.11.2016 passed in M.C.No.3821/2015 on the file of the VI Addl. Prl. Judge, Family Court, Bengaluru, for having dissolved the marriage of the respondent and appellant solemnized on 01.05.2005 at State Government Community Hall, Davanagere, is to be confirmed.
V. Parties will appear before this Honb’le High Court of Court, Bengaluru, for passing orders in terms of the settlement / agreement.
Appellant Respondent Advocate for Advocate for Appellant Respondent
VERIFICATION
We, the parties above named do solemnly state and declare that what is contained in paragraphs I to V are true to the best of our knowledge, information and belief.
Appellant Respondent Dated:05.07.2019 Place : Bengaluru”
9. Learned counsel for the respondent is handing over two demand drafts to appellants’ counsel who has inturn handed them over to the appellants, the details of which are as under:
(i) DD No.021378 dated 11.08.2009 for a sum of `6,50,000/- drawn in favour of the appellant – Smt.Sadhana B.S, on Syndicate Bank, Vidyaranyapura Branch, Bengaluru.
(ii) DD No.021379 dated 17.08.2009 for a sum of `6,50,000/- drawn in favour of the minor son Master Nitin Naik U, on Syndicate Bank, Vidyaranyapura Branch, Bengaluru.
10. We have closely perused the Terms of Settlement arrived at between the parties and we find that the same to be lawful. We did not find any legal impediment to accept the same and to dispose of the appeal in the aforesaid terms.
11. In the circumstances, this appeal is disposed of in terms of the settlement arrived at between the parties. The impugned judgment and decree of the VI Additional Principal Judge, Family Court, Bengaluru dated 02.11.2016 passed in M.C.No.3821/2015 is confirmed. The parties shall abide by the other terms and conditions of the settlement.
Ordered accordingly.
In view of disposal of the appeal, I.A.No.2/2017 stands disposed of.
Office to dispatch the Lower Court Records to the concerned Family Court forthwith.
Sd/- JUDGE GH\ Sd/- JUDGE