Allowed

Smt Srilatha P v. Sri G Vadiraj

Karnataka HC5 Oct 2020MFA/1035/2019

Case brief

AI extract

What is this about?

Appeal against a divorce decree was allowed in favor of the parties by granting a divorce by mutual consent under Section 13-B(1) of the Hindu Marriage Act based on a filed settlement. The six-month waiting period under Section 13-B(2) was waived due to a long separation. All other claims were settled.

What did the court decide?

Judgment and decree impugned substituted by granting decree of divorce by mutual consent under Section 13-B(1) of the Hindu Marriage Act, 1955.

Smt Srilatha P Vs Sri G Vadiraj — Maintenance and Alimony | Karnataka HC (2020)

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MFA.1035/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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M.F.A.No.1035 OF 2019

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BETWEEN:

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Smt. Srilatha.P., Wife of C.Vadiraj, Aged about 30 years, Presently residing at No.866/9, Saraswathinagar, ‘B’ Block, Hadadi Road, Davanagere – 577 005. … Appellant (By Sri.Madhukar Deshpande, Advocate) AND:

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Sri.G.Vadiraj, Son of K.S.Gururaj Rao, Aged about 32 years, Residing at No.216/8, Balaji Raod, II Block, T.R.Nagar, Bangalore – 560 028. … Respondent (By Sri. Vishnu Murthy, Advocate)

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MFA.1035/2019

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This appeal is filed under Section 19(1) of the Family Courts Act, against the Judgment and Decree Dated:21/12/2018, passed in MC.No.53/2018, on the file of the Judge, Family Court, Davanagere, allowing the petition filed under Section 13(1) (i-a) of Hindu Marriage Act.

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This appeal coming on for Hearing this day, NAGARATHNA, J., delivered the following:

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JUDGMENT

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This appeal is filed by the wife being aggrieved by the judgment and decree of dissolution of marriage between her and the respondent - husband being granted under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for the sake of brevity) passed in M.C.No.53/2018 dated 21.12.2018 by the Family Court at Davanagere.

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During the pendency of this appeal, the parties have negotiated a settlement in the matter.

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Learned counsel for the respective parties submitted in unison that the parties have filed a compromise petition incorporating in detail the terms of

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the settlement arrived at between the parties. That the parties have also filed a petition under Section 13-B(1) of the Act seeking for dissolution of their marriage by a decree of divorce by mutual consent and another application has been filed under Section 13-B(2) of the Act seeking waiver of the stipulation contained in the said Section.

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Learned counsel for the respective parties submitted that the petition filed by the respondent – husband may be substituted by the petition now filed by the parties under Section 13-B(1) of the Act and the appeal may be accordingly disposed by taking into consideration the terms of the settlement filed in the form of a memorandum of compromise under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 read with Sections 9 and 10 of the Family Courts Act, 1984.

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Learned counsel for the respective parties submitted that the order may be made on the joint

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petition filed under Section 13-B(1) of the Act, so as to substitute the judgment and decree passed by the Family Court, Davanagere, under Section 13(1)(i-a) of the Act in M.C.No.53/2018.

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The petition filed under Section 13-B(1) of the Act, the application filed under Section 13-B(2) of the Act as well as the compromise petition, which has been filed by way of abundant caution under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 read with Sections 9 and 10 of the Family Courts Act, 1984, are taken on record. It is noted that they are signed by the respective parties and their counsel. The petition filed under Section 13B(1) of the Act and the application filed under Section 13-B(2) of the Act are supported by joint affidavits of the parties.

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The parties and their respective counsel are present before this Court physically. They have been identified by their respective counsel.

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When queried by this Court, the parties stated that they have indeed arrived at a settlement of their disputes and they have negotiated such a settlement with the assistance of their respective counsel. They stated that they would abide by the terms of the settlement which have been arrived at on their own free volition and without there being any coercion or undue influence from any side. They further stated that the appeal may be disposed of in terms of the petition and the application. The compromise petition is filed by way of abundant caution.

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We have perused the petition filed under Section 13-B(1) of the Act. The relevant terms and conditions read as under:

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“12. Terms and conditions of this petition are as under:

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A. Permanent Alimony: This day, before this Hon’ble Court, the Respondent has paid an amount of Rs.15,00,000/- (Rupees Fifteen Lakhs

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Only) has permanent alimony to the Appellant and also his daughter namely kumari Shreesudha and details of payment are as under:

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i. By way of Demand Draft and the bearing No.182735 drawn on Syndicate Bank Dated 1.9.20. The Appellant acknowledges receipt of Rs.15,00,000/- (Rupees Fifteen Lakhs Only).

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B. Arrears of Maintenance: The Appellant had filed a petition in Crl.Mis.No.467/2016 before the Hon’ble Family Judge, Davanagere and there is an order to pay maintenance to the Appellant by the Respondent. The Respondent had paid certain maintenance amount. Certain amount is due and payable by the Respondent to the Appellant and for the same, a case in Crl.Misc.No.505/2019 u/s 128 of Cr.P.C. has been filed by the Appellant against the Respondent. The respondent has paid the arrears till 30.08.2020 i.e., Rs.1,98,500/-

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(One Lakh Ninghty eight thousand five hundred Rupees Only) and the same is paid as under:

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i. Rs.1,98,500/(One Lakh Ninety eight thousand five hundred Rupees Only) by way of Demand draft bearing No.182733 dated 31.08.2020.

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The Appellant acknowledges the receipt of the amount of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) and Rs.1,98,500/- (One Lakh Ninety Eight Thousand Five Hundred Rupees Only). In view of the receipt of Rs.15,00,000/- and Rs.1,98,500/-, the appellant states that there is no further any claim regarding maintenance and arrears of maintenance and she also undertakes to file memo before the Family Court Davanagere, seeking dismissal of the petition in Crl.Misc.No.505/2019.

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C. The Appellant further submits that the aforesaid amount of Rs.15,00,000/-

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(Rupees Fifteen Lakhs only) is received towards permanent alimony for herself and child kumari shreesudha. The Appellant and her daughter hereby undertake that they have no claim against the Respondent in respect of their permanent alimony.

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D. Closure of Pending Cases between

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the Appellant {Wife} and Respondent {Husband} : The appellant humbly submits that she had filed a complaint before Women P.S.Davanagere in Crime No.77/2016 and same is pending before 2^nd Additional Senior Civil Judge, Davanagere in C.C.No.1263/2018 for an offence u/s 498(A),504, of IPC and 3 & 4 of Dowry Prohibition Act, 1961. The Respondent has filed a criminal petition in Cr.Petition No.4864/2020 before the High Court of Karnataka, seeking quashing of proceedings in C.C.No.1263 of 2018. The Appellant undertakes to assist with the Respondent in quashing the above

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case before Hon’ble High Court of Karnataka at Bangalore.

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E. The Appellant humbly submits that she had filed the Crl.Misc.No.21/2018 before the learned 3^rd Additional JMFC Court Davanagere and the same was disposed on 4.09.2019 for non prosecution and the Appellant hereby undertakes that she will not reopen (restore) the said case in view of the settlement. Both the parties undertake that there are no other cases or any other petition beforse any authority, police and before the Hon’ble court. If any such complaint is pending without their knowledge, they undertake to withdraw such complaint on their own cost.

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F. Custody of Child : The parties submit that out of their wedlock they are having one daughter namely Kum. Shree sudha, who is now aged about 4 years 8 months and at present she is in the custody of Appellant {Mother}

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and Respondent {Father} has no objection to continue the custody of the child with Appellant {Mother} and in future the Respondent {Father} will not claim custody as well as visitation rights of child Kum.Shree Sudha.

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G. The Appellant and Respondent further declare that they have no obligations, responsibilities or demands against one another and the parties are at liberty to lead their future life independently without interference by one another.

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H. The Appellant and Respondent humbly submit that they have agreed for divorce voluntarily and they have no claims against each other regarding any jewelleries or silver articles or any house hold articles.

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I. The Appellant withdraws all allegations made in the petition in M.C.NO.53/2018 and the Respondent also withdraws all allegations made in the petition in MC.No.53/2018.

MFA.1035/2019

Prayer

WHEREFORE, the Petitioners most humbly pray that this Hon’ble Court may be pleased to grant a decree of divorce by dissolving the marriage solemnized on 27.02.2015 at Vidya Payonidhi Sabhangana (Vyasaraj Mutth) Kalyan Mantap, Bengaluru, under Section 13B(1) of Hindu Marriage Act 1955, and grant such other further relief as may be deemed fit in the interest of equity and justice.

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We have also perused the compromise petition filed by the parties under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 read with Sections 9 and 10 of the Family Courts Act, 1984. Paragraphs 4 A to I are identical to the terms and conditions of the petition filed under Section 13-B(1) of the Act extracted above. Therefore, we do not think it necessary to extract those terms and conditions once again. As already stated, the

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said compromise petition has been filed only by way of abundant caution.

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We have perused the application filed under Section 13-B(2) of the Act seeking waiver of the mandatory stipulations mentioned in the said Section.

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The parties were married on 27.02.2015 at Bengaluru and the petition was filed by the respondent herein on 23.11.2016 before the Family Court at Bengaluru, in M.C.No.5188/2016, which was later transferred to the Family Court at Davanagere and renumbered as M.C.No.53/2018. The parties have been residing separately since August, 2016 and that the condition precedent that they have not resided together for a period of one year prior to filing the said petition as stated in Section 13-B(1) of the Act is satisfied in the instant case.

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The parties have stated that since they have been living separately since August, 2016 and there is no

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possibility of a reconciliation in the matter and it is not possible for the parties to reside together, the period of six months which is stipulated under Sub-section (2) of

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Section 13-B of the Act may be waived.

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Having regard to the facts and circumstances of this case, we find that in the instant case the said stipulation could be waived having regard to the judgment of the Hon’ble Supreme Court in the case of

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Amardeep Singh Vs Harveen Kaur – (2017) 8 SCC 746 . We say so because the parties have negotiated a settlement in the instant case and the terms of settlement are clear and it is indicative of the fact that the parties have no intention to reconcile or think of cohabiting together again. Hence, the application filed under Section 13B(2) of the Act is allowed.

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We have perused in detail the terms of the settlement and the circumstances under which the settlement has been arrived at in the instant case. The

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parties have also stated by themselves and through their respective counsel that there is no possibility of the parties reconciling the differences or cohabiting together and therefore, they have decided to dissolve their marriage by seeking a decree of divorce by mutual consent. In the circumstances, the conditions stipulated under Section 13-B (1) of the Act for grant of dissolution of marriage by a decree of divorce by mutual consent are complied with in the instant case, inasmuch as the parties have been residing separately for a period of one year or more and they are not able to reconcile their differences and live together. Therefore, on perusal of the terms of settlement, we find that they are lawful and there is no legal impediment to accept the same.

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Learned counsel for the respondent submits that in terms of the settlement, two demand drafts drawn on Syndicate Bank, D.V.G. Road (Basavanagudi), Bengaluru – 560 004, in the name of the appellant Smt.Shreelatha

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P., one bearing No.182733 dated 31.08.2020 for a sum

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of Rs.1,98,500/- towards arrears of maintenance and another bearing No.182735 dated 01.09.2020 for a sum of Rs.15,00,000/- towards permanent alimony, are being handed over to the learned counsel for the appellant, who in turn, handed over the same to the appellant, who has acknowledged the receipt of the same. On receipt of the same, she submits that she has no claims whatsoever against the respondent. That the custody of the minor daughter – Baby Shreesudha, now aged 4½ years, shall remain with the appellant – wife. The respondent – husband has not reserved any visitation rights.

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In the circumstances, the petition filed by the parties under Section 13-B(1) of the Act is allowed. The marriage between the parties solemnized on 27.02.2015 at Vidya Payonidhi Sabhangana (Vyasaraj Mutt) Kalyana Mantapa, Bengaluru, is dissolved by mutual consent. The judgment and decree impugned in this appeal is

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accordingly substituted. Registry to draw up a decree under Section 13-B(1) of the Act.

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Sd/JUDGE

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Sd/JUDGE

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PKS