Allowed

Sri Sandeep K H v. Smt Sowmya G

Karnataka HC3 Feb 2021MFA/3715/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a First Appeal against a divorce petition dismissal by granting a decree of divorce by mutual consent after the parties settled all claims and filed a joint petition under Section 13-B with payment of high court alimony.

What did the court decide?

Divorce decree by mutual consent granted; previous orders set aside; settlement terms accepted and alimony demand draft accepted.

Sri Sandeep K H Vs Smt Sowmya G — Matrimonial and Divorce | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD 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.3715 of 2019 (FC)

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BETWEEN :

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SRI.SANDEEP K.H., AGED ABOUT 31 YEARS, S/O. HANUMANTHARAYA, RESIDING AT : C/O. NARAYANAPPA, SAPTHAGIRI NILAYA, 2^ND MAIN, 5^TH CROSS, 80 FEET ROAD, BATAWADI TUMAKURU. ... APPELLANT

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(BY SRI. CHANDRASHEKAR.M, ADVOCATE)

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AND:

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SMT. SOWMYA .G, W/O. SANDEEP K.H., D/O. GOVINDA, AGED ABOUT 27 YEARS, RESIDING AT C/O. NARAYANAPPA, SAPTHAGIRI NILAYA, 2^ND MAIN, 5^TH CROSS, 80 FEET ROAD, BATAWADI, TUMAKURU.

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WORKING AT DATA COLLECTION INFO TECH (INDIA) PVT., LTD., SRI VENKATESHWARA TOWERS,

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NEAR SRI. KRISHNA TEMPLE, TUMAKURU – 572 101 ... RESPONDENT

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(BY SRI.M.S.SANKARAGULLI, ADVOCATE (PH) SRI. HARISH H.V., ADVOCATE (PH.))

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED: 02.01.2019, PASSED IN M.C.NO.151/2017, ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE PETITION FILED U/S. 13(1)(i-a) OF THE HINDU MARRIAGE ACT.

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

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JUDGMENT

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Though this appeal is listed for admission, the same is taken up for final disposal on the submission made by the learned counsel for the respective parties, in the presence of the parties.

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The appellant - husband has preferred this

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appeal assailing the dismissal of the petition filed under Section-13(1)(i-a) of the Hindu Marriage Act 1955 (hereinafter referred to as ‘Act’ for the sake of brevity),

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by judgment and decree dated 02.01.2019, passed in M.C. No.151/2017.

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Briefly stated facts are that, the parties were married on 18.11.2015 at M.N.K. Kalyana Mantappa, Madhugiri as per Hindu rites and customs. Owing to differences and incompatibility between the parties, the appellant sought for dissolution of marriage by a decree of divorce under Section–13(1)(ia) of the Act. The said petition was contested by the respondent– wife. However, the trial court by its judgment and decree dated 02.01.2019, dismissed the said petition. Being aggrieved by the impugned judgment and decree, the husband has preferred this appeal.

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Learned counsel for the respective parties submitted that during the pendency of this appeal, the parties have negotiated a settlement. They have decided to dissolve their marriage by a decree of divorce by mutual consent. That the terms of settlement have also

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been delineated by way of an petition filed under Section13-B(1) of the Act, which is supported by a joint affidavit by the parties.

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Learned counsel for the respective parties further submitted that since the parties are living separately for the last 3-4 years, and as there is no possibility of reconciliation or cohabitation, they have filed an application under Section-13 B(2) of the Act, which is supported by a joint affidavit by the parties.

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Learned counsel for the respective parties submitted that in terms of the settlement arrived at between the parties a sum of Rs.12,00,000/- (Rupees Twelve Lakh Only) is being paid by the appellant-husband to the respondent-wife in full and final settlement of her claims. The parties have already exchanged articles and other movables and they have no claims whatsoever against each other.

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The learned counsel for the respective parties

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who have filed a petition under Section-13 B(1) of the Act submitted jointly that the appeal may be disposed off in terms of the said petition.

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The parties are present before the court and they have been identified by their respective counsel. When queried by this Court, they stated that they have indeed agreed to dissolve their marriage by a decree of divorce by mutual consent and the terms are set out in the petition filed by them jointly. They further stated that they have arrived at a consensus on their own, without their being any coercion or any undue influence from any side. They stated that the appeal may be disposed off by granting a decree of divorce by dissolving their marriage by mutual consent.

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In the circumstances, we have taken on

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record the petition filed under Section–13-B(1) of the Act and perused the same. It is noted that the said petition

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is signed by the respective parties and their learned counsel. It is supported by a joint verifying Affidavit by the parties. The petition reads as follows:

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“PETITION UNDER SECTION 13-B OF THE HINDU MARRIAGE ACT :

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The petitioner and respondents submit state as follows:

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1. The appellant is the husband and the respondent is his wife and their marriage was solemnized under Hindu customary rites on 18.11.2015 at M.N.K. Kalyan Mantap, Madhugiri. The appellant is working as SDA in Panchayath Raj and Rural Development Department. The respondent is a MBA and M.Com Graduate and working in a private concern.

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2. That the appellant had filed a petition before the Principal Judge, Family Court at Tumkur in M.C.No.151/2017 seeking divorce against his wife, the respondent herein under Section 13(1)(ia) of the Hindu Marriage Act. The said petition came to be dismissed by judgment dated 02.01.2019. Against the

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respective orders before this Hon’ble Court which appeals is pending consideration.

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3. The appellant and respondent have been living separately since 14.07.2017 and there is no cohabitation between the appellant and respondent since then and the marriage has irretrievably broken down. The appellant and respondent have now realized that there is no purpose of continuing the relationship of marriage and their relationship has strained beyond repairs. The marriage is irretrievable broken down. There are no children to the appellant and respondent born out of the said wedlock. Therefore the appellant and respondent have decided to file the above petition for divorce by mutual consent.

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4. The appellant has agreed to pay a sum of Rs.12,00,000/- (Rupees Twelve Lakhs Only) to the respondent towards permanent alimony by way of Demand Draft dated 224965, dated 18.12.2020, drawn on Bank of Baroda, in the name of respondent Sowmya.G, to be paid at the time of grant of decree of divorce, before this Hon’ble Court.

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5. The above payments are agreed to be made by the appellant to the respondent towards permanent alimony in final settlement and there will be no further revision of amount.

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6. Both the parties states that they have no claim of any nature against each other either past, present or future, except the above mentioned amount payable to respondent.

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7. Both the parties acknowledge and admit that they have exchanged their valuable articles such as Gold, Silver and other articles and that there are no other articles to be exchanged between them.

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8. The appellant and respondent submit that they have no rival claims against each other of whatsoever nature. The appellant and respondent are at liberty to live independently without depending upon each other in any manner whatsoever. Both the parties shall not disturb the lives of each other in any manner.

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9. The appellant and respondent submit that they have instituted present proceedings

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after understanding the contents and out of their own free will, without coercion or collusion.

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Wherefore the appellant and respondent pray that this Hon’ble Court may kindly be pleased to pass a Decree of Divorce declaring the marriage between the appellant and respondent, solemnized on 18.11.2015 at M.N.K. Kalyan Mantap, Madhugiri, Tumakuru District, as per Hindu Marriage Act is dissolved and grant such other and further relief under the circumstances as this Hon’ble Court deems fit to grant.”

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We have also perused the affidavit filed under Section-13 B(2) of the Act seeking waiver of the period of six months under the said provision. On perusal of the supporting affidavit and in light of the submission made by the learned counsel for the respective parties, we find that owing to difference of opinion and incompatibility, there is no reconciliation between them. Therefore, there is no possibility of cohabitation.

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In the circumstances, we deem it just and proper to allow the said application, by placing reliance on the dictum of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur, reported in 2017 (8) SCC 746. Hence, the said application filed under Section 13-B(2) of the Act is allowed.

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We have perused the terms of settlement and

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find that the valuables which were in possession of the other party, have been exchanged and the parties have no claim whatsoever against each other in respect of valuable articles.

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A demand draft for a sum of Rs.12,00,000/-, dated 18.12.2020 bearing No.224965, drawn on Bank of Baroda, in the name of the Respondent, viz., Sowmya.G, is being handed over by the learned counsel for the appellant to the learned counsel for the respondent, who

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in turn has handed over the same to the respondent, who acknowledges receipt of the same.

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We have perused the terms of settlement and

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we find them to be lawful and there is no legal impediment in accepting the same. Under the circumstances, the impugned judgment and decree of the Principal Judge, Family Court at Tumakuru, dated 02.01.2019, passed in M.C. No.151 of 2017 is set-aside and substituted by this judgment.

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The marriage between the appellant and the respondent, which took place on 18.11.2015, at M.N.K. Kalyana Mantapa, Madhugiri is dissolved, by a decree of divorce by mutual consent.

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Learned counsel for the respective parties submitted that in view of the settlement arrived at between the parties in this appeal, the judgment and decree passed in M.C. No.80 of 2017, by the Additional

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Senior Civil Judge and JMFC, at Madhugiri, on 11.10.2019 on a petition filed by the respondent – wife in this appeal under Section – 9 of the Act, would have no effect. The said submission is placed on record and is accepted.

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In view of this judgment, the judgment and decree passed in M.C. No.80 of 2017, by the Additional Senior Civil Judge and JMFC, at Madhugiri, on 11.10.2019 on a petition filed by the respondent – wife in this appeal under Section – 9 of the Act, which has attained finality, would no longer have any efficacy or effect.

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Registry to draw a decree accordingly.

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Sd/JUDGE

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Sd/JUDGE

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Sri Sandeep K H v. Smt Sowmya G

Case brief

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Sri Sandeep K H v. Smt Sowmya G

Case brief

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