Allowed

Shailendra Kumar B v. Smt. Hamsa S

Karnataka HC10 Feb 2021MFA/1973/2020

Case brief

AI extract

What is this about?

This appeal against dismissal of a Section 13(1)(ia) divorce petition was disposed of by allowing the parties' joint petition for divorce by mutual consent under Section 13B. The Court dispensed with the six-month stipulation due to prolonged separation and approved the settlement terms.

What did the court decide?

Divorce by mutual consent decree granted, substituting the earlier judgment of dismissal; appeal disposed of.

Shailendra Kumar B Vs Smt. Hamsa S — Matrimonial and Divorce | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2021

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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 MRS. JUSTICE M.G. UMA

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MISCELLANEOUS FIRST APPEAL No.1973/2020 (FC)

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BETWEEN:

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SHAILENDRA KUMAR B., S/O A.BASAVARAJU, AGED ABOUT 41 YEARS, NO.330, 4^TH ‘C’ CROSS, BANASHANKARI 3^RD STAGE, 3^RD PHASE, 5^TH BLOCK, BANGALORE – 560 085.

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... APPELLANT

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(BY SRI DEEPAK B.R., ADVOCATE (THROUGH PHYSICAL HEARING))

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AND:

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SMT.HAMSA S., D/O SATHYAKUMAR, AGED ABOUT 35 YEARS, NO.247, DIVYASRI NILAYA, 4^TH MAIN, 7^TH CROSS, C.N.HALLI, HEBBAL, BENGALURU – 560 024.

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... RESPONDENT

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(BY SRI B.K.MANJUNATH, ADVOCATE (PHYSICAL HEARING))

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IN MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED 30.11.2019 PASSED IN MC NO.5388/2014 ON THE FILE OF THE PRL. JUDGE, FAMILY

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COURT, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(ia) OF HINDU MARRIAGE ACT.

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

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ORDER

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Though this appeal is listed for admission, learned counsel for the respective parties submitted in unison that the appeal could be disposed of in terms of the petition filed by the parties under Section 13B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for the sake of brevity) and the application filed by them under Section 13B(2) of the Act.

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Learned counsel for the respective parties submitted that the appellant-husband had filed a petition in M.C.No.5388/2014 under Section 13(1)(ia) of the Hindu Marriage Act seeking dissolution of marriage by a decree of divorce. The Principal Judge, Family Court, Bengaluru, by judgment dated 30.11.2019, dismissed the said petition. Being aggrieved, the husband has preferred this appeal.

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During the pendency of this appeal, the parties have decided mutually to put an end to their marriage by seeking dissolution of their marriage by a decree of divorce by mutual consent. The parties have filed the petition under Section 13B(1) of the Act as well as a joint application under Section 13B(2) of the Act. The same may be allowed and the appeal may be accordingly, disposed of.

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The parties are present before this Court.

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They have been identified by their respective counsel.

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When queried by this Court, they have stated

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that they have agreed to dissolve their marriage by a decree of mutual consent. That the terms are set out in the said petition filed by them under Section 13(B)(1) of the Act. They have come to a conclusion that they will not be able to live together as husband and wife and they have decided to dissolve their marriage out of their own free will without any

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coercion or undue influence from any side. The parties have stated that they would abide by the settlement and the order granting dissolution of marriage by a decree of divorce by mutual consent.

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In the above circumstances, we have taken on record the petition filed under Section 13(B)(1) of the Act. The same reads as under:

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“Petition filed under Section 13-B of the Hindu Marriage Act 1955 for divorce by Mutual Consent.

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1. The Petitioners above named humbly submit as follows the address of the parties for the purpose of service of notices process etc., by this Hon’ble court is as stated in the Cause title.

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2. The marriage of the petitioner number one and petitioner number two was solemnized on 13/2/2013, at ‘GOWRI SHANKARA MAHAL”, West of Chord Road, Rajajinagar, Bangalore as per the rituals and customs of Hindu law prevailing in their community.

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3. The petitioners submit that, after marriage they lived together in the house address of the Petitioner No.1 and they were not able to adjust to each other and there were difference of opinions between them as such they are living separately from 09/11/2014. From this date of separation, the Petitioner No.1 is living in his residential address and Petitioner No.2 she is living in her parental address as mentioned in the Cause – title.

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4. There are no children born out of the wedlock and the Petitioners are both gainfully employed and the Petitioner No.1 is a software engineer by profession and the Petitioner No.2 is also an Engineer and working at Jain University, Kanakapura as Assistant Professor.

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5. The Petitioners are of the opinion that their relationship is handicapped and hampered and cannot be set right due to the difference of thinking.

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6. The Petitioners submit that there is no compatibility between them.

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7. The Petitioners humbly submit that both of them have come to the conclusion that they will not be able to live together as husband and wife and bilaterally have decided to dissolve

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their marriage and hence the petitioners have jointly filing this petition for a decree of divorce by mutual consent out of their own free will and consent.

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8. The Petitioners submit that there is no possibility of reconciliation between them and have no claims and future claims against each other.

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9. The petitioners submit that there is no collusion between both the parties and both have decided not to interfere in lives of each other’s in future.

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10. The petitioners hereby agree that all the allegations made against each other are unconditionally withdrawn and they will not cast aspersions on each other in future with their friends and relatives and in their community. The petitioners shall not file any criminal and civil cases against each other or against their parents and relatives.

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11. The petitioners agree that all pending litigations will be resolved and the petitioner No.2 gives here consent and agrees that, she will cooperate to withdraw the criminal cases which is pending in C.C.No.7314/2015 before II ACMM, Bengaluru for offences punishable under

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sections 498-A r/w 34 I.P.C. and Sections 3 & 4 of the Dowry Prohibition Act.

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12. The Petitioner No.2 also agrees to withdraw the criminal Miscellaneous Domestic violence case pending in criminal Miscellaneous No.220 of 2015 which is pending before 2^nd MMTC, Bangalore.

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13. The Petitioner No.2 also undertakes that she will also withdraw the Writ Petition No.1398 of 2020 which is pertaining to the Domestic violence act, pending before this Hon’ble court after entering into this mutual consent Divorce petition and order.

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14. All the above pending criminal cases shall be withdrawn within the stipulated period of time to be fixed by this Hon’ble court and the Petitioner No.2 undertakes that such withdrawal of criminal cases and participating in the procedure of closure of criminal cases, if the regular court is vacant, the same may be directed to be closed before the concerned court in charge of the regular court.

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15. The Petitioner No.1 undertakes to withdraw the Criminal Petition No.3214/2018 filed by him and his family members under section 482 CRPC to quash the proceedings

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pending in C.C.No.7314 of 2015 pending before the Second Additional Chief Metropolitan Magistrate, Bangalore.

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16. The cause of action for the above consent petition arose on 09/11/2014 from which point of time the Petitioners 1 & 2 are living separately and there is no compatibility between the petitioners.

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17. The Petitioners have paid the prescribed court fees of Rs.100/- on the above memorandum of consent divorce petition as required under law.

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PRAYER

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Wherefore, the Petitioners 1 & 2 humbly pray that this Hon’ble court may be pleased to pass; - A. Decree of Divorce dissolving the marriage between the Petitioners solemnized on 13/2/2013, at “Gowri Shankara Mahal”, West of Chord Road, Rajajinagar, Bangalore.

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B. To grant such other relief/s as deemed fit in accordance to the facts and circumstances of the case in the interest of justice.”

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It is supported by a joint affidavit of the

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parties. The same is signed by the respective parties as well as their counsel.

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We have also perused the application seeking dispensation of the period of six months stipulated under sub-section (2) of Section 13B of the Act. The same is also supported by a joint affidavit.

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The parties were married on 13.02.2013 and M.C.No.5388/2014 was filed on 17.12.2014. Learned counsel for the respective parties submitted that there is no possibility of a reconciliation between the parties. There is no chance of cohabitation and the parties living separately since the year 2014, no purpose would be served in complying with the stipulation under Section 13B(2) of the Act. Therefore, they submitted that the said application may be allowed and the petition filed by them under

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Section 13B(1) may be allowed and accordingly, the appeal be allowed.

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When we queried the parties, they also stated that they have been living apart since 2014 and they do not wish to continue their marriage any longer. In the circumstances, placing reliance on the judgment of the Hon’ble Supreme Court in the case of AMARDEEP SINGH vs. HARVEEN KARU (2017)8 SCC 746), the application filed under Section 13B(2) of the Act is allowed.

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We have perused the terms of the settlement arrived at between the parties as stated in the petition filed under Section 13B(1) of the Act. On perusal of the same, we find that they are lawful and there is no legal impediment for accepting the said terms. As noted above, the parties have stated that they would abide by the terms stated in the petition.

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In the circumstances, the petition filed under Section 13B(1) is accepted and allowed.

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The marriage solemnized between the parties on 13.02.2013 at Gowri Shankara Mahal, West of Chord Road, Rajajinagar, Bengaluru, is dissolved by a decree of divorce by mutual consent by substituting the Judgment and Decree dated 30.11.2019 passed in M.C.No.5388/2014. Accordingly, appeal is disposed of.

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Registry to draw up a decree in the aforesaid

terms.

JUDGE

Sd/JUDGE

bnv*

Shailendra Kumar B v. Smt. Hamsa S

Case brief

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Shailendra Kumar B v. Smt. Hamsa S

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