IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. NO.6677 OF 2019 (FC) BETWEEN:
SRI. H. HANUMANTHAPRASAD S/O H.C. HANUMANTHAIAH AGED 34 YEARS, ‘LAKSHMI NILAYA’ SATHYAMANGALA, SIRA GATE ROAD, SATHYAMANGALAL EXTENSION TUMAKURU-572102 ... APPELLANT (BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE) AND:
A.S. ANITHA W/O H. HANUMANTHAPRASAD AGED 38 YEARS ‘SRIRANGA NILAYA’, 3RD CROSS ROAD BHAGAYAVATHI LAYOUT ARALIMARADA PALYA, SIRA GATE TUMAKURU CITY-572101 ... RESPONDENT (BY SRI. V.B. SIDDARAMAIAH, ADVOCATE FOR C/R) ***** THIS APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 05.08.2019 PASSED IN M.C.NO.53/2018 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, TUMAKUR, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(i-a) OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is heard finally.
2. The petitioner in M.C.No.53/2018 has assailed the judgment of dismissal of the said petition by the Principal Judge, Family Court at Tumakuru by judgment dated 05.08.2019.
3. The respondent is the wife while the petitioner is the husband.
4. Learned counsel for the respective parties submit that the parties were married on 22.11.2013. That they have been living separately for the last five years. That they have not been able to live together and have mutually agreed that their marriage be dissolved.
5. Learned counsel for the respective parties jointly submit that during the pendency of this appeal, the parties have arrived at a negotiated settlement that they have decided to seek dissolution of their marriage by a decree of divorce by mutual consent.
6. They have filed a petition under section 13B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’ for the sake of brevity) incorporating the terms of the settlement arrived at between the parties.
7. Learned counsel for the respective parties further submit that the parties have also filed an application under Section 13B(2) of the Act seeking waiver of the period of six months stipulated under the said provision. The said application is also supported by their respective affidavits. They further submit that since the parties have been separated for the last five years and the parties intend to dissolve their marriage by a decree of divorce by mutual consent, this Court may allow the application filed under Section 13B(2) of the Act.
8. At this stage, it is relevant to note the decision of the Hon’ble Supreme Court in the case of AMARDEEP SINGH VS. HARVEEN KAUR reported in (2017) 8 SCC 746 with regard to grant of decree of divorce by mutual consent by waiving the period of six months stipulated therein.
9. The parties (Sri.H.Hanumanthaprasad and Smt.A.S.Anitha) are present before this Court and have been identified by their respective advocates. When enquired by this Court, parties submitted that they have indeed agreed to seek dissolution of marriage by decree of divorce by mutual consent and that the same may be allowed without insisting upon six months period stipulated under Section 13B(2) of the Act.
10. Learned counsel for the appellant submitted that a sum of Rs.40,00,000/- is being paid by two cheques one bearing No.080406 for a sum of Rs.20,00,000/- dated 22.10.2019 drawn in favour of the respondent on Kaveri Grameena Bank, M.G.Road Branch, Tumkur and another cheque bearing No.270183 for a sum of Rs.20,00,000/- dated 22.10.2019 drawn in favour of the respondent on Kaveri Grameena Bank, M.G.Road Branch, Tumkur. The said cheques have been signed by the parents of the appellant and the same would be honoured. The said cheques are handed over by the learned counsel for the appellant to the learned counsel for the respondent who has in turn handed over the same to the respondent who acknowledges the receipt of the same.
11. The petition filed under Section 13B(1) of the Act is taken on record and perused. It is signed by the respective parties and their counsel. It is supported by a joint verifying affidavit.
12. The petition reads as under:-
“PETITION FILED BY THE PETITIONER AND RESPONDENT UNDER SECTION 13(B)(1) OF HINDU MARRIAGE ACT1955:
THE APPELLANT AND RESPONDENT RESPECTFULLY SUBMIT AS FOLLOWS:
1. It is submitted that, the appellant and respondent admits that they are the legally wedded spouses and the appellant is the husband and the respondent is the wife and their marriage was solemnized as per the customs and rituals prevailing in their Hindu community on: 22.11.2013 at Bhavikatter Kalyana Mantapa, Tumkur.
2. The appellant and respondent submits that after the marriage between both the spouse, since from the date of marriage, both of them have no cordial matrimonial relationship and both the appellant and respondent have lost interest in each other and their marriage became in soluble mess and both of the lost interest with each other, further it is impossible for them to live as husband and wife any longer. And both the appellant and respondent have been residing separately from December 2014 and since living separately.
3. That the attempts made by the elders of the family of both the parties to bring about conciliation between the parties went in vain and totally the continuation of the marriage relationship between the parties is nothing but a continuation of mental agony and sufferings.
4. That the appellant and respondent have been living separately for a period of more than five years and they have not been able to live together in future, in the interest of both of the appellant and respondent they decided to put an end to sorrow by breaking the marriage relationship to have their own bright prospective future herein afterwards.
5. It is submitted that, in regarding gold ornaments, both the appellant and respondent settled the issues amicably, and both of them exchanged the said gold ornaments and question of gold ornament dose not arise in future.
6. That the appellant and respondent have worldly wide knowledge and they have capacity to understand the consequences of the decree of the divorce which is going to be passed in this case against them by this Hon’ble court.
7. That the appellant and respondent by considering all the above circumstances, position and situation have decided to file this joint compromise petition seeking decree for divorce by consent.
8. It is submitted that the respondent is received totally Rs.40,00,000/- (Rupees Forty Lakhs) in two cheques bearing cheque Nos.080406 and 270183 drawn on Kaveri Grameena Bank, M.G. Road Branch,Tumkur, each cheques amounting twenty lakhs Dated: 22.10.2019 from the appellant towards full and final settlement of her permanent alimony which includes maintenance already granted in Crl.Mis.No.146/2017 on the file of the Hon’ble Principal Family court at Tumkur. Hence the respondent has no claim what so ever in future and further she agreed that she will not claim any right, share, right or what so ever in future against the respondent and also his step mother and his family with respect of the appellant properties or ancestral and joint family properties of the appellant is concern and also she get withdrawn all the recovery proceedings filed by her in family court at Tumkur.
9. Further it is submitted that the respondent agreed to compromise the matter in C.C.No.61/2015 for the offences punishable Under Section 498(A) of I.P.C. and 3 and 4 of D.P. Act. on the file of the Hon’ble Principal Civil Judge (SD) at Tumkur, and she will withdraw the said matter and all the allegations made against the appellant and his family members in all the proceedings concern.
10. It is submitted that, the appellant herein has filed RPFC 145/2019 (Hanumanthathaprasad .H. V/s A.s. Anitha) and the respondent herein filed RPFC 142/2019 (A.S. Anitha V/s Hanumanthaprasad. H) before this Hon’ble court. Both the appellant and the respondent are agreed to withdraw aforesaid RPFC petitions.
11.Further it is submitted that there is no issues out of the said wedlock.
12.The parties to bear their own cost.
13. That the petitioner has withdraw the allegation made in the petition against the respondent.
14.WHEREFORE, the appellant and respondent very respectfully prayed that the Hon’ble court may kindly be pleased to pass a decree of divorce by declaring that the marriage between the petitioner and respondent dated: 22.11.2013 at Bhavikatte Kalyana Mantapa, Tumkur, be dissolved by virtue of the decree of divorce in the interest of justice and equity.
Sd/- Sd/-
Advocate for appellant Appellant Sd/- Sd/-
Advocate for Respondent Respondent Place: Bengaluru Date: 25.10.2019”
13. The learned counsel for the appellant submits RPFC No.142/2019 filed by the husband shall be withdrawn by him. Consequently, RPFC No.145/2019 filed by the respondent-wife shall be disposed of as withdrawn. It is submitted that steps would be taken for closure of C.C.No.61/2015 and that the respondent shall cooperate in that regard.
14. The application filed under Section 13B(1) of the Act by the respective parties supported by their respective affidavits are taken on record and perused.
15. We find that the parties were married on 22.11.2013 and that they have been separated for the last five years. That there is no possibility of the parties residing together and leading a conjugal life.
16. Learned counsel for the respective parties submits that application filed under Section 13B(1) of the Act may be allowed.
17. We find that having regard to the facts that emerge in this case and the fact that there is no possibility of reconciliation in the matter, it would be in the interest of justice to allow the application filed under Section 13B(1) of the Act by bearing in mind the dictum of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur referred to above.
18. Hence, applications filed by the respective parties are allowed. We have already noted that the parties herein were married on 22.11.2013 and have been separated for the last five years and they have averred that there is no possibility of reconciliation and the parties leading a marital life by living together and that they have mutually agreed that their marriage be dissolved by mutual consent.
19. We have perused the averments made in the petition filed under Section 13B(1) of the Act which are extracted above. On perusal of it, we find the same to be lawful. We do not find any legal impediment to dispose of the appeal in terms of the compromise petition.
20. In the circumstances, the impugned judgment and decree dated 05.08.2019 passed in M.C.No.53/2018 by the Principal Judge, Family Court, Tumakuru is set aside and the marriage between the parties solemnized on 22.11.2013 is dissolved by mutual consent.
Office to draw up a decree accordingly in the aforesaid terms.
Sd/- JUDGE Sd/- JUDGE Prs*