IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH 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.3885 OF 2018 (FC) BETWEEN:
SRI. P. RAMESH S/O LATE PUTTASWAMY AGED ABOUT 45 YEARS RESIDING AT NO.1408 9TH CROSS, 9TH MAIN DR. RAJ ROAD, SRINIVASANAGAR BENGALURU-560050 ... APPELLANT (BY SRI. NAVEEN NANDA D.T, ADVOCATE) AND:
SMT. P. RASHMI W/O SRI. P. RAMESH C/O SMT. LEELAMMA AGED ABOUT 35 YEARS RESIDING AT NO.130 2ND CROSS, 13TH MAIN NAGENDRA BLOCK BENGALURU-560050 ... RESPONDENT (BY SRI. N.R. NAIK, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 23.02.2018 PASSED ON MC NO.5118/2014 ON THE FILE OF THE 2ND ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(ia) OF HINDU MARRIAGE ACT.
THIS APPEAL IS COMING ON FOR HEARING THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
JUDGMENT The appellant is the husband, while the respondent is the wife. Being aggrieved by the dismissal of the petition filed by the appellant in M.C. No.5118/2014 before the II Addl. Principal Judge, Family Court at Bengaluru by Judgment dated 23.02.2018, the husband has preferred this appeal.
2. Learned counsel for the respective parties submit that during the pendency of this appeal, the parties have arrived at negotiated settlement and have resolved their disputes and have agreed for the marriage to be dissolved by way of mutual consent.
3. Learned counsel for the respective parties submit that this matter was referred by this Court to the Bangalore Mediation Centre and settlement was arrived at between the parties and a Memorandum of Settlement under Section 89 of the Code of Civil Procedure, 1908 r/w Rules 24 and 24 of the Karnataka Civil Procedure (Mediation) Rules, 2005 has been filed.
4. Learned counsel for the respective parties further submit that since the petition seeking dissolution of marriage by decree of divorce filed by the appellant herein was dismissed and in view of the settlement arrived at between the parties, the petition under Section 13B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’ for the sake of brevity) has also been filed and that the marriage may be dissolved by a decree of divorce by mutual consent. They further submit that the said petition is supported by a joint affidavit and an application has been filed under Section 13B(2) of the Act. It is also supported by a joint affidavit seeking waiver of the stipulated period of six months and for grant of a decree of divorce by mutual consent. Having regard to the latest dictum of the Hon’ble Supreme Court in the case of Amardeep Singh –v- Harveen Kaur reported in (2017) 8 SCC 746, learned counsel submit in unison that this appeal may be disposed of accordingly.
5. The parties are present before this Court and are identified by their respective counsel. When queried by this Court, they submit that they have arrived at a settlement of the disputes of their own and free volition without there being any coercion or undue influence from any side.
6. The memorandum of settlement is taken on record and perused. Similarly, the petition filed under Section 13B(1) of the Act is taken on record and perused and also the application filed under Section 13B(2) of the Act is taken on record and perused. It is noted that Memorandum of Settlement, as well as the petition filed under Section 13B(1) and application filed under Section 13B(2) have been signed by the parties and their respective counsel. It is noted that parties were married on 23.03.1998 and they are having two children from out of wedlock and that the parties have been living separately since 13.01.2015.
7. Learned counsel for the respective parties submit that parties have not been living together since then and having not been able to live together, they have mutually agreed that the marriage be dissolved. It is further noted that an application has been filed under Section 13B(2) of the Act seeking waiver of the stipulated period of six months stated therein, as the parties have been living separately since last four years and that they will not be able to live together and they have mutually agreed that their marriage be dissolved. Therefore, learned counsel submit that the application under Section 13B(2) may be allowed and decree of divorce by mutual consent may be granted as the parties have been living separately since the year 2015 and they have not been able to live together and they have mutually agreed that the marriage be dissolved.
8. Having regard to the recent dictum of the Hon’ble Supreme Court in the case of Amardeep (supra), the petition filed under Section 13B(1) of the Act is allowed. The statutory period of six months as stipulated therein is waived. In the circumstances, application filed under Section 13B(2) is allowed.
9. The memorandum of settlement arrived at between the parties before the Bengaluru Mediation Centre 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 Appellant has filed the above petition against the judgment and decree dated 23.02.2018 passed in M.C.No.5118/2014 passed by the Hon’ble II Addl. Prl. Judge, Family Court, Bengaluru.
II. The aforesaid appeal was referred to mediation for resolving the dispute between the parties. During the course of mediation, they have resolved their dispute and have agreed to the following terms and conditions:
1. The Parties concur that their marriage was solemnized between the parties on 23.03.1998 at Anand Rao Kalyana Mantap, Sajjan Rao Circle, Bengaluru has irretrievably broken down and there exists no chance of reconciliation between them, As they have been living apart since 2014. both the parties agree that, it would be in their best interest to seek dissolution of the marriage by mutual consult.
2. The parties agree that they having parted way back in the year 2014 and have no cohabited since.
3. The respondent agrees that in view of the settlement arrived at with regard to the maintenance, alimony of herself and the children she agrees to co-operate with the Appellant in filling an petition under 482 of the Criminal Procedure Code to quash proceedings in the Criminal Case filed by her under the provision of 498A in CC No.10610/2015 pending before the 24th ACMM, Bengaluru. Further agrees to withdraw the Crl.Misc. filed by her under the provision of 125 of Cr.PC in the III Family Court in Crl. Misc. 149/2015 and the case under the provision of DV Act pending before the Ii MMTC, Bengaluru in Crl.Misc.72/2015.
4. The appellant has agrees to handover Three Demand Drafts of Rs.6,00,000/- Each, bearing Nos.308933, 308936 and 308943. All are Drawn at The Karnataka State Co-op. Apex Bank Ltd, Banashankari 3rd Stage, Bengaluru in the name of the Rashmi.P (Respondent), Manjunath.R and Annapoornehswari.R, the later to being the children of the Appellant and the Respondent at the time of the recording of the settlement before the Hon’ble High Court, Bengaluru.
5. The appellant and the respondent in view of the settlement arrived at in these proceedings with regard to the dissolution of the marriage, withdraw all the allegations unconditionally and unequivocally, against each other in the M.C.No.5118/2014 and agree that they shall file appropriate application/proceedings to terminate the order Criminal Proceedings instituted against each other.
6. The respondent agrees that she shall continue to have the sole and absolute custody of the minor daughter Sri. Annapoorneshwari. R and the appellant shall have no objection of whatsoever kind and agrees that he shall not claim any sort of visitation in these proceedings.
7. Both parties agree and admit that they have entered into this compromise/ settlement/agreement on their own free will and consent without any force, fraud, coercion or any undue influence from any one.
8. The parties assure each other that there are no other pending legal proceedings pending between them other than what is stated above and if any in view of the settlement arrived at in these proceedings the same shall not be pressed or prosecuted in further.
9. The parties agree that they have no mutual claim either movable or immovable against each other.
III. In view of the aforesaid agreement entered into between the parties, the parties pray that this Hon’ble Court be pleased to record the settlement and dissolve their marriage solemnized on 12.09.2010 at Bengaluru, in terms of this settlement.
IV.Parties will appear before the Hon’ble Court for passing orders in terms of the settlement/agreement”.
10. One of the terms of the settlement arrived at between the parties is payment of permanent alimony to the respondent -wife to the tune of Rs.Six lakhs by way of Demand Draft No.308933 dated 20.07.2019 drawn on the Karnataka State Co-operative Apex Bank Limited. Learned counsel for the appellant submits that the said Demand Draft is being handed over towards full and final settlement of the appellant’s obligation to the respondent. Appellant’s counsel further submits that two Demand Draft for a sum of Rs.Six lakhs each bearing No.308943 and 308936 drawn in favour of the children Manjunath and Annapurneshwari dated 25.7.2019 and 20.7.2019 respectively, drawn on the Karnataka State Co-operative Apex Bank Limited are also being handed over to the respondent and that the said amount is to be utilized for the welfare of the minor children. Learned counsel for the respondent acknowledges receipt of the same.
11. The parties submit that they would abide by the other terms and conditions of the settlement arrived at between them.
12. We have perused the terms of settlement arrived at between the parties. Petition filed under Section 13B(1) and application filed under Section 13B(2) of the Act are taken on record. On perusal of the petition filed under Section 13B(1) of the Act and application under Section 13B(2), we find that the same are lawful. There is no legal impediment for accepting the same and hence, the same are accepted by this Court. Marriage between the parties is dissolved by mutual consent under Section 13B(1) of the Act. Further, the terms of settlement arrived at between the parties shall be complied with by them.
The appeal is disposed in the aforesaid terms. Registry to draw up a decree under Section 13B(1) of the Act incorporating the terms of settlement between the parties.
Sd/- JUDGE Sd/- JUDGE ln