IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No. 10350/2018 C/W M.F.A. NO. 9614/2018 (FC) BETWEEN:
MR. SHRIKANTH S. NAIKAR AGED ABOUT 34 YEARS, S/O S.K. NAIKAR, R/AT DOOR NO.105, 2ND MAIN ROAD, KASTURI NAGAR, BENGALURU – 560 043.
... APPELLANT COMMON IN BOTH THE APPEALS (BY SRI CHETAN B ANGADI, ADVOCATE) AND:
MRS. SHRUTHI .M.B AGED ABOUT 29 YEARS D/O MARUTHI BANNIHALLI HANUMANTHAPPA R/AT DOOR NO. 2832, 4TH CROSS, 3RD MAIN MCC, ‘B’ BLOCK DAVANAGERE. ... RESPONDENT COMMON IN BOTH THE APPEALS (BY SRI SURESH M, ADVOCATE) ***** M.F.A. NO.10350/2018 IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED: 19.09.2018 PASSED IN MC NO.88/2018 ON THE FILE OF THE JUDGE, FAMILY COURT, DAVANAGERE, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(i-a) (ib) OF HINDU MARRIAGE ACT, 1955.
M.F.A. NO.9614/2018 IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED: 19.09.2018 PASSED IN MC NO.05/2018 ON THE FILE OF THE JUDGE, FAMILY COURT, DAVANAGERE, ALLOWING THE PETITION FILED UNDER SECTION 9 OF HINDU MARRIAGE ACT, 1955.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T MFA.No.9614/2018 is filed by the husband, being aggrieved by the judgment and decree dated 19/09/2018 passed in favour of the respondent – wife under Section 9 of the Hindu Marriage Act, 1955 [hereinafter, referred to as ‘the Act’, for the sake of brevity], in M.C.No.5/2018 by the Family Court at Davanagere, while, MFA.No.10350/2018 is also filed by the husband against the respondent – wife, being aggrieved by the dismissal of M.C.No.88/2018, passed by the very same Court, vide judgment and decree dated 19/09/2018 and thereby, declining to grant dissolution of marriage by a decree of divorce under Section 13B(1) and 13B(2) of the Act.
2. Learned counsel for respective parties submit that during the pendency of these appeals, parties have negotiated a settlement and they have decided to dissolve their marriage by a decree of divorce by mutual consent. They further submit that a petition under Section 13B(1) of the Act has been filed, which is supported by a joint affidavit of the parties, seeking the aforesaid relief. Further, another application has been filed under Section 13B(2) of the Act, seeking waiver of the period of six months stipulated under the said sub-section and for grant of divorce by waiving the said period of six months. The said application is also supported by a joint affidavit of the parties. They submitted that the parties are present before this Court and the relief sought for by the parties can be granted by setting aside the judgment and decrees impugned in these appeals.
3. The parties who are present before this Court have been identified by their respective counsel. They submitted that they have indeed arrived at a negotiated settlement. Respondent – wife submitted that she has consented for divorce to be granted by mutual consent in the instant case and subject to the appellant paying permanent alimony to her, in a sum of Rs.25,00,000/- [Rupees twenty five lakhs only].
4. The appellant also submitted that he has consented for grant of a decree of divorce by mutual consent and is paying Rs.25,00,000/- [Rupees twenty five lakhs only], to the wife by way of Demand Draft in full and final settlement of all claims of the wife.
5. Learned counsel for respective parties have filed a petition under Section 13B(1) and the application under Section 13B(2) and the same are taken on record.
6. It is observed that the petition is signed by the parties and also their respective counsel and the same is supported by a joint affidavit of the parties. Similarly, the application filed under Section 13B(2) of the Act is signed by the advocates and by the respective parties and is supported by a joint affidavit and the same are taken on record.
7. It is noted from the petition that the parties have agreed to dissolve their marriage by a decree of divorce by mutual consent on their own free volition without there being any undue influence or coercive action from any side. The same is also stated by the parties, who are present before this Court.
8. Learned counsel for appellant submits that a sum of Rs.25,00,000/- is being paid to the respondent – wife, by way of Demand Draft bearing No.002784 dated 30/11/2019 drawn on HDFC Bank, in favour of the respondent – wife and the same is being handed over to learned counsel for respondent and who has in turn handed over the same to the respondent, who has acknowledged receipt of the same. The aforesaid payment is in full and final settlement of the respondent – wife and vice-versa.
9. Having perused the application filed under 13B(2), we find that the parties have made out a case for waiving of the period of six months stipulated in the sub- section, as they are living separately since the year 07/03/2015 and on account of their incompatibility they are unable to reconcile their differences and live together. 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], we are satisfied that the period of six matters stipulated in the said sub-section ought to be waived and the same is waived. Hence, the application filed under Section 13B(2) is allowed.
10. On perusal of the petition filed under Section 13B(1) of the Act, we find that the parties have indeed resolved to separate by seeking dissolution of their marriage by a decree of divorce by mutual consent and subject to the following terms:-
“1. It is submitted that MFA No.10350/2018 filed by the husband which is arising out of dismissal of Divorce Petitioner filed under section 13(1)(ia) (ib) before the Family Court, Davanagere which was numbered as M.C. No.88/2018, which came to dismissed by the Family Court Davanagere by virtue its order dated : 19.09.2018.
2. Similarly, the Appellant No.2(wife) had filed for Restitution of Conjugal rights under section 9 of Hindu Marriage Act which came to be numbered as M.C.No.5/2018 and by virtue of order dated : 19.09.2018 came to be allowed.
3. Being aggrieved by the order of the Court below in MC No.05/2018, Appellant No.1 filed MFA No.9614/2018.
4. Now both parties having settled their disputes are filing this Application before this Hon’ble Court as per the terms and conditions mentioned hereinbelow:
5. The under signed Counsels appearing for the Appellants humbly submits that the Appellants are Hindu by religion and their marriage was solemnized on 24.08.2011, at Bapujisamudaya Bhavan, Shamanur Road Davanagere as per Hindu rights and customs, out of the said wedlock there are no issues.
6. It is humbly submitted that, due to their irreconcilable differences and non-compatibility of temperament the Appellant no.1 and Appellant no.2 herein are living separately since 07.03.2015, the efforts made by the elders, friends and well wishers to resolve the differences between them have failed. There is absolute no chance of reunion amongst them, because of their irreconcilable differences and non-compatibility the marriage is irretrievably broken down, hence both the parties have decided to mutually dissolve the marriage between them by decree of divorce.
7. The Appellant No.1 is B.E. MBA and Appellant No.2 is MTech, but be as such, as per the agreed terms of settlement the Appellant no.1 herein paying full and final settlement, an amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) to the Appellant No.2 herein as permanent alimony by way of D.D. Dated :30.11.2019 bearing No.002784 HDFC bank, Banaswadi branch, Bangalore 560 043, Drawn in favour of Shruthi. M.B. It is further submitted that both the parties herein have agreed upon that they have no further claims from each other whatsoever, over movable or immovable belongings of each other either existing or in future or to be acquired in future.
8. It is humbly submitted that, the Appellant No.2 herein has agreed to withdraw the Execution Petition No.03/2019 pending on the file of the family court Davanagere, in respect of order dated:19.09.2018 of the family court Davanagere, in M.C.No.05/2018 seeking restitution of conjugal rights.
9. It is submitted that the parties herein have not stayed together at any point of time, hence there is no conjugal rights between the parties from the date of decree of Restitution of Conjugal right from 19.09.2018. It is further submitted that since from the date of decree one year has already lapsed.
10. It is humbly submitted that, the Appellants states that they have already exchanged their respective valuable articles and other personal belongings, there are no further claims regarding articles.
11. It is humbly submitted that, the Appellants herein have further agreed that they have no other claims of whatsoever manner against each other, in present or future.
12. It is humbly submitted that, both the parties further state that there has been no element of force or undue influence in entering into the settlement/agreement as per the above mentioned terms and conditions of the settlement.
13. Both the parties have agreed that they shall not interfere in the lives of each other in future.
14. All the allegation made in their respective Petitions by the parties against each other are hereby withdrawn.
In view of this settlement entered between the parties, the Appellants herein humbly pray before this Hon’ble court that it may kindly be pleased to dissolve the marriage solemnized between them on 24.08.2011 at Bapuji Samudaya Bhavan, Shamanur Road, Davanagere by granting a decree of divorce.”
11. On perusal of the same, we find that the terms are lawful and there is no legal impediment to accept the same.
12. In the circumstances, the impugned judgments and decrees of the lower Court are substituted by the decree of divorce by mutual consent granted by this judgment. Appeals are disposed of in the aforesaid terms.
13. Registry to draw up a decree in the aforesaid terms.
Sd/- JUDGE Sd/- JUDGE *mvs