Allowed

Dr. C. R. Rakesh v. Dr. B. K. Triveni

Karnataka HC11 Dec 2020MFA/5612/2017

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the dismissal of a divorce petition. The Court accepted a mutual consent divorce petition filed under Section 13B(1), waived the six-month waiting period under Section 13B(2) citing Amardeep Singh, and approved the settlement terms regarding custody and property.

What did the court decide?

Dissolution of marriage by mutual consent under Section 13B(1); waiver of six-month period under Section 13B(2) accepted; settlement terms approved.

Dr. C. R. Rakesh Vs Dr. B. K. Triveni — Matrimonial and Divorce | Karnataka HC (2020)

¶1

-: 1 :-

¶2

IN THE HIGH COURT OF KARNATAKA, BENGALURU

¶3

DATED THIS THE 11^TH DAY OF DECEMBER, 2020

¶4

PRESENT

¶5

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

¶6

AND

¶7

THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

¶8

M.F.A. No.5612/2017 (FC)

¶9

BETWEEN:

¶10

DR. C.R. RAKESH S/O. A.K. RAGHAVAN, AGED ABOUT 40 YEARS, R/AT B-375, KRISHNA, BAHUBALINAGAR, JALAHALLI, BANGALORE – 560 013. ... APPELLANT

¶11

(BY SRI V.S. BIJU, ADVOCATE)

¶12

AND:

¶13

DR. B.K. TRIVENI W/O. DR. C.R. RAKESH, AGED ABOUT 39 YEARS, R/AT SREENIVASA NILAYA, OLD MYSORE ROAD, K.R. PET – 571 426. ... RESPONDENT

¶14

(BY SRI B. ROOPESHA, ADVOCATE)

¶15

THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, 1984 AGAINST THE JUDGMENT AND DECREE DATED 05.06.2017 PASSED IN M.C.NO.3305 OF 2010 ON THE FILE OF THE C/C III ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, REJECTING THE PETITION FILED UNDER SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.

¶16

THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:

¶17

-: 2 :-

¶18

J U D G M E N T

¶19

This appeal is listed for orders. The appellant is the husband, while respondent is the wife. Appellant/husband has filed this appeal being aggrieved by the dismissal of his petition (M.C.No.3305/2010) by the III Additional Principal Judge, Family Court, Bengaluru, by judgment dated 05/06/2017. The appellant/husband had filed the said petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for the sake of brevity) seeking dissolution of his marriage with respondent on 02/07/2003 at Chavakkad, Guruvayur, Kerala.

¶20

Learned counsel for the respective parties submitted in the presence of the parties that after prolonged negotiations, the parties having decided to arrive at a settlement, under which, they have decided to dissolve their marriage by mutual consent subject to certain terms and conditions. Therefore, they have filed a petition under Section 13B(1) of the Act. Learned counsel for the respective parties also submitted that the parties were married in the year 2003, but since the year 2010, on account of litigation, they have been residing separately and therefore, they have filed an application under sub-

¶21

-: 3 :-

¶22

section (2) of Section 13B of the Act seeking waiver of the condition stipulated under sub-section (2) of Section 13B of the Act having regard to the judgment of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [(2017)8 SCC 746] (Amardeep Singh vs. Harveen Kaur).

¶23

Learned counsel for the respective parties submitted that this appeal may be disposed of in terms of the petition filed by the parties by substituting the impugned judgment and decree.

¶24

The parties are present before this Court.

¶25

They have been identified by their respective counsel. In fact, in this case, the parties have appeared before this Court on earlier occasions also through video conference and have expressed their views with regard to settlement. Today (11/12/2020) also, the parties have expressed about the terms of settlement.

¶26

When queried by this Court, they stated that they have, indeed, decided to dissolve their marriage by mutual consent on certain terms and conditions which are set out in the petition filed by them under Section 13B(1) of the Act. They have also stated that they have arrived at

¶27

-: 4 :-

¶28

a settlement on their own free volition without there being any coercion or undue influence from any quarter. They have also stated that they would abide by the terms of settlement arrived at by them.

¶29

In the circumstances, we have taken on record the petition filed by them under Section 13B(1) of the Act. We find that the petition is signed by the parties and their respective counsel. It is supported by the affidavits of the parties.

¶30

The parties have also filed an application under Section 13B(2) of the Act seeking waiver of six months period stipulated under the said provision. They have stated that on account of the differences between them, their marriage has broken down irretrievably. There is no possibility of reconciliation and co-habitation. Therefore, in view of the prolonged litigation, the stipulated period of six months may be waived. The said application is also supported by affidavits of the respective parties.

¶31

Since we have taken on record the petition

¶32

filed under Section 13B(1) of the Act, it is necessary to extract the same:

¶33

-: 5 :-

¶34

“ MEMORANDUM OF PETITION UNDER SECTION 13B(1) OF THE HINDU MARRIAGE ACT

¶35

The Petitioner No.1 and Petitioner No.2 most humbly submit as follows:

¶36

It is submitted that the petitioner No.1 has filed the appeal under section 19(1) of the Family Court Act against the judgment and decree dated: 05.06.2017 passed in M.C.No.3305/2010 on the file of the III Additional Family Court in dismissing the divorce petition filed by the petitioner No.1 the appeal bearing M.F.A.No.5612/2017 arises out of the above said order.

¶37

The Petitioner No.1 and Petitioner No.2 submit that, at the intervention of elders and wellwishers, they have resolved to amicably settle the disputes between themselves in the following terms and conditions.

¶38

The Petitioner No.1 and Petitioner No.2 submit that they are Hindus by Religion and they were married on 02.07.2003 at Chavakkad, Guruvayur, Kerala as per the Hindu Rites and Customs. The Petitioner No.1 and the Petitioner No.2 submits that out of their wedlock they have a male child, namely Master.Rudhr, who was born on 20.01.2006, and now he is now aged about 14 years. The said child is presently under the care and custody of the petitioner No.2/mother.

¶39

It is submitted that the petitioner No.1 is living separately since 9 years. There is absolutely no chance of reunion by the petitioner No.1 and petitioner No.2. Hence the petitioner No.1 and the petitioner No.2 have decided to get the marriage

¶40

-: 6 :-

¶41

between them dissolved by a decree of divorce. The petitioner No.1 and the petitioner No.2 hereby agree to each other for the dissolution of the marriage between themselves by decree of divorce as per the following terms and conditions.

¶42

a) The petitioner No.1 does not have any manner of objection whatsoever for the Petitioner No.2/mother to have the sole custody and care of their child Master. Rudhr, as well as the Petitioner No.1 has no objections to take Master Rudhr to abroad for future education along with his mother for his personal upliftment. The petitioner No.1 will not claim the custody of the minor child at present or in future in the changed circumstances except the visiting rights.

¶43

b) The Petitioner No.1 and the Petitioner No.2 herein agrees that they will jointly bear the education expenses inclusive of tuition fees, of their Son Master Rudhr by sharing the burden equally. The Petitioner No.1 has agreed that he would pay a sum of Rs.25,000/- per month for the maintenance of his son Master Rudhr till the completion of his entire education or takes up a paid job. The petitioner No.1 should transfer the said amount to the Petitioner No.2 Bank i.e., South Indian Bank,

¶44

St.Philomenas Branch. Account No.0593053000004094, IFSC CODE: SIBL0000593 and the aforesaid monthly maintenance is not inclusive of the educational expenses to be borne by the Petitioner No.1 equally. The Petitioner No.1 will not create

¶45

-: 7 :-

¶46

any kind of problems which may put the child’s education at risk.

¶47

c) The petitioner No.2 undertakes that, she will not take the child namely Master.Rudhr to abroad when he is perusing his 12^th standard, if it is necessary the petitioner No.2 will file necessary application before this Hon’ble court for appropriate directions.

¶48

d) The petitioner No.1 is entitled to meet his son twice in a month on Sundays i.e., from 9.00 a.m. to 8.00 p.m., Petitioner No.1 is also entitled to take the child with him for 10 to 15 days during the Dasara Vacations and in Summer Vacations with prior intimation and the petitioner No.1 should drop the child back with the Petitioner No.2 or at her parents place.

¶49

e) The Petitioner No.2 is planning to move abroad for the purpose of livelihood and for professional obligations. In such event the petitioner No.1 is entitled to extend the visiting rights through video or telephonic call to his son Master.Rudhr on Sunday’s.

¶50

f) It is the responsibility of the Petitioner No.2 to inform the Petitioner No.1 well in advance regarding her move either to abroad or to India and provide necessary information with regard to her stay in India or in abroad. The petitioner No.1 and petitioner No.2 should exchange their Telephone numbers and Postal Address each other if there is any changes.

¶51

-: 8 :-

¶52

g) The Petitioner No.2 in lieu of claiming permanent alimony from Petitioner No.1 as an ex-gratia, for which the petitioner No.1 is the lawful owner of northern portion of site No.06 (Six) Assessment No.58, T.Dasarahalli CMC Ward No.04, Old Katha No.61, New Katha No.779, situated at Muneshwara Block (Mallasandra), Yeshwanthpur Hobli, Bangalore North Taluk, Now within the limits of Bruhath Bangalore Mahanagara Palike, Bangalore, Measuring East to West 40-0 Feet and North to South 15-0 feet totally measuring 600 Sq.feet, which he had acquired the same under the registered sale deed dated 13.01.2010 and the said residential property consist of Four Floors with Four housing accommodations (one on each floor). The Petitioner No.1 has agreed to transfer the above said property in favour of petitioner No.2 by executing the registered gift deed in favour of petitioner No.2 as permanent alimony. The above compromise is subject to execution of Gift Deed.

¶53

h) The property which is gifted to petitioner No.2 will be the absolute property of the Petitioner No.2 other than petitioner No.2 no one has right over the said property and she can deal with the above said property in what so ever manner.

¶54

i) The petitioner No.1 has borrowed the housing loan from AFGIS for a tenure of 20 years. The said loan has been paid up for 10 years. The petitioner No.1 has undertaken to clear the

¶55

-: 9 :-

¶56

loan as early as possible without any default. The petitioner No.1 under takes that, after clearing the loan amount, he has no objection for AFGIS to hand over all the original documents to the custody of the petitioner No.2 in respect of the above said property. The petitioner No.1 has no objection to transfer the Katha of the above said property in the name of the petitioner No.2 and he has agreed to execute all such documents for transfer of Katha.

¶57

j) The Petitioner No.1 has let-out above premises for tenants, the petitioner No.1 undertakes to transfer/assign the lease agreement of tenants residing at the above said property in favour of Petitioner No.2 and further the Petitioner No.1 undertakes that he will take all precautions informing the tenants residing in the aforesaid house to pay the monthly rent to the Petitioner No.2 herein. Further the advance amount which is received by the Petitioner No.1 during lease period. The Petitioner No.1 has agreed to transfer the said lease advance amount to the Petitioner No.2 Bank, Account i.e., South Indian Bank, St.Philomenas Branch, in Account No.0593053000004094, IFSC CODE: SIBL0000593 immediately after entering into the compromise.

¶58

k) The petitioner No.1 and petitioner No.2 hereby jointly declare that, the order passed in G&WC.No.108/2013 by the III Additional Family Court Bengaluru will not be acted upon

¶59

-: 10 :-

¶60

by them and hence same may be dissolved, in view of filing of the present petition.

¶61

The petitioners herein have resolved their disputes amicably as stated above and both of them are free to lead their independent and peaceful life without interference with each other and both the parties under take that they will not create any situation which may defame or tarnish the reputation of petitioner No.1 as well as petitioner No.2 and their family members untruthfully.

¶62

WHEREFORE , the petitioners pray that this Hon’ble Court be pleased to pass a decree of divorce

¶63

(a) Dissolving the marriage solemnized between the Petitioner No.1 and Petitioner No.2 and 02.07.2003 at Chavakkad, Guruvayur, Kerala.

¶64

And

¶65

(b) Pass such other order as this Hon’ble Court deems fit go grant in the circumstances or the case in the interest of justice and equity.

¶66

Sd/Sd/Advocate for Petitioner No.1 Petitioner No.1

¶67

Sd/Sd/Advocate for Petitioner No.2 Petitioner No.2

¶68

VERIFICATION

¶69

We, C.R.Rakesh the petitioner No.1 and B.K.Thriveni the petitioner No.2, do hereby verify and declare that what is stated above are true and

¶70

-: 11 :-

¶71

correct to the best of our knowledge, belief and information.

¶72

Sd/Petitioner No.1

¶73

PLACE: Bengaluru, Sd/Date: 11/12/2020. Petitioner No.2”

¶74

We have heard learned counsel for the respective parties and perused the application filed under Section 13B(2) of the Act.

¶75

The parties have been separated for over a decade. There is no possibility of reconciliation between them muchless co-habitation. In the circumstances, having regard to the recent dictum of the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur (supra), the application filed under Section 13B(2) of the Act is allowed.

¶76

We have perused the terms of settlement. On perusal of the same we are satisfied with the said terms. We find that they are lawful and there is no legal impediment in accepting the same. Hence, the said terms are accepted by this Court.

¶77

During the course of the proceeding, two points were sought to be made: the first point is, to ensure

¶78

-: 12 :-

¶79

that the respondent/wife has a good title of the gift deed of the property to be gifted by the appellant/husband to her. Secondly, the gift deed must be made as early as possible and in accordance with law. We note that the property to be gifted to the respondent/wife is mortgaged to the Bank. In the circumstances, the gift deed shall be executed by the respondent/husband in favour of the appellant/wife in accordance with law and without there being any legal impediment to do so, so that a good title is conveyed by the appellant to the respondent.

¶80

Secondly, as far as the minor child, who is presently aged about fourteen years of age is concerned, since the custody of the child has been given to the respondent/wife with visitation rights reserved to the appellant/husband, we find that there may be a possibility of the respondent/wife seeking employment overseas, in which vent, child may have to accompany her. At that time, an application shall be filed before this Court not for the purpose of seeking permission to take the child abroad, but only for the purpose of bringing to the notice of this Court, the fact that the child will be going overseas so that the said fact is also brought to the notice and knowledge of the appellant husband. In that event, the

¶81

-: 13 :-

¶82

visitation rights shall be accordingly worked out. So also, on the educational expenses that has to be borne depending, upon the course of study that the child would undertake. Therefore, on that aspect, it is not possible for this Court to lay down any norms or directions at this stage.

¶83

In the circumstances, this appeal is disposed of by substituting the impugned judgment and decree by the present judgment. The marriage between the parties solemnized on 02/07/2003 at Chavakkad, Guruvayur, Kerala, is dissolved by mutual consent under Section 13B(1) of the Act.

¶84

15. The registry to draw up a decree accordingly.

¶85

In view of disposal of the appeal, I.A.No.1/2018

stands disposed.

Sd/JUDGE

Sd/JUDGE

Dr. C. R. Rakesh v. Dr. B. K. Triveni

Case brief

What is this about?

What did the court decide?

Dr. C. R. Rakesh v. Dr. B. K. Triveni

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mrs Anusree Chandrahasan Vs Rajesh Kumar R

Mrs Anusree Chandrahasan Vs Rajesh Kumar R

Smt Gayathri Vs the State of Karnataka

Smt. K N Vandana Vs Bangalore Development Authority

The Secretary Vs Lakshmaiah

Mr Tamil Selvam Vs Union of India