Allowed

Mr. Dinker M Pai v. Mrs.Laxmi Shenoy

Karnataka HC5 Feb 2021MFA/8505/2019

Case brief

AI extract

What is this about?

The High Court allowed the husband's appeal against the Family Court's order upholding a restitution of conjugal rights petition. Instead, the Court disposed of the matter by granting a mutual consent divorce decree under Section 13B of the Hindu Marriage Act, 1955, after the parties filed a joint petition and performed settlements of property and payments.

What did the court decide?

The appeal was allowed; the judgment upholding restitution of conjugal rights was set aside; the marriage was dissolved by a decree of divorce by mutual consent under Section 13B(1) of the Hindu Marri

Mr. Dinker M Pai Vs Mrs.Laxmi Shenoy — Matrimonial and Divorce | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 5^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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M.F.A. No.8505/2019 (FC)

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BETWEEN:

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MR. DINKER M. PAI, AGED ABOUT 40 YEARS, S/O. MR. MANOHAR PAI, RESIDING AT JAYALAXMI NIVAS, C-55, NORTH EAST EXTENSION, THILLANINAGAR, TRICHY - 620 018. ... APPELLANT

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(BY MISS VEENA J. KAMATH, ADVOCATE FOR KAMATH AND KAMATH, ADVOCATES)

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AND:

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MRS. LAXMI SHENOY, AGED ABOUT 31 YEARS, W/O. MR. DINKER M. PAI, RESIDING AT 17-13-40, MANGESHI, KAPRIGUDDA, 1ST CROSS, MANGALURU - 575 001. ... RESPONDENT

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(BY MISS. GAUTHAMI S. BHANDARY, ADVOCATE FOR SRI. PRASHANTH B.K., ADVOCATE)

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THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 22.08.2019 PASSED IN M.C.NO.352/2015 ON THE FILE OF THE I ADDITIONAL PRL. JUDGE, FAMILY COURT, D.K., MANGALURU, ALLOWING THE PETITION FILED UNDER SECTION 9 OF THE HINDU MARRIAGE ACT.

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

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J U D G M E N T

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This appeal is preferred by the husband, being aggrieved by the judgment and decree passed in M.C.No.352/2015 by the I Additional Principal Judge, Family Court at Dakshina Kannada, Mangaluru, dated 22/08/2019. The same was on a petition filed under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for the sake of brevity) seeking restitution of conjugal rights by the respondent/wife. In that petition a counter claim was sought by the appellant/husband by which a decree of divorce was sought. By the impugned judgment and decree, the petition filed under Section 9 for restitution of conjugal rights was allowed and the counter claim filed by the appellant/husband seeking a decree of divorce was rejected. Hence, 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 and they have decided to resolve their disputes and seek dissolution of their marriage by a decree of divorce by mutual consent. Therefore, they have filed a petition under Section 13B(1) of the Act, which is supported by a joint affidavit. The

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petition has enunciated the terms of settlement. Learned counsel for the respective parties further submitted that the parties were married on 12/06/2014, but have not been residing together since July 2015. That there is no possibility of reconciliation of the differences between them and resumption of cohabitation. Therefore, they have filed an application under Section 13B(2) of the Act seeking waiver of six months stipulated under the said provision. That the said application is also supported by a joint affidavit. Hence, the application and the petition filed under Section 13B(1) may be allowed by setting aside the impugned judgment and decree of the Family Court.

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The parties are also 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, the parties stated that they have, indeed, resolved to seek dissolution of their marriage by a decree of divorce by mutual consent on certain terms and conditions as mentioned in the petition filed by them under Section 13B(1) of the Act. The parties further stated that they have arrived at the settlement on their free volition without there being any coercion or undue influence from any side. They stated that they

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would abide by the terms and conditions mentioned therein. They further stated that the appeal may be disposed of in terms of the settlement arrived at by them.

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In the circumstances, we have taken the joint petition filed by the parties under Section 13B(1) of the Act on record. It is noted that it is signed by the respective parties and their counsel supported by a joint affidavit signed by the parties, which reads as under:

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"JOINT PETITIION UNDER SECTION 13-B(1) OF THE HINDU MARRIAGE ACT 1955 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908

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The Appellant and the Respondent, who are the joint Petitioners in the present petition, respectfully submit as follows:

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The Appellant and Respondent are Hindus by religion and are governed by the provisions of Hindu Marriage Act 1955. They were married on 12.06.2014 at C.V. Nayak Hall, Kadri Road, Mangalore as per the rites and rituals of G.S.B. community to which both the Appellant and the Respondent belong. After the marriage, the Respondent began residing with the Appellant in the Appellant's family House situated in Trichy in the State of Tamil Nadu. The said house belongs to the father of the Appellant. After the marriage in Mangalore, the reception of the Appellant and the Respondent was held in Trichy on 22.06.2014 and the Respondent's parents, sisters and other

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relatives came and stayed in the house of the Appellant.

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During the initial days of their marriage, the Appellant and Respondent both experienced that there was not much compatibility between the parties. As days passed, the Appellant and Respondent owing to irreconcilable differences in habits, tastes, thoughts and increasing incompatibility, the relationship between them consistently deteriorated and they have been having difference of opinion frequently. Several attempts by them to reconcile have failed. As such, the Respondent and Appellant are living separately with effect from July 2015.

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The Respondent had filed a petition under Section 9 of the Hindu Marriage Act, 1955 before the Family Court at Mangaluru in M.C. No. 352 of 2015 and the Appellant herein had preferred a counter claim in the same petition under Section 13(1)(ia) read with Section 23A of the Hindu Marriage Act, 1955 seeking dissolution of the marriage solemnized on 12.06.2014 as well as submitted objections to the petition filed by the Respondent under Section 9 of the Hindu Marriage Act, 1955.

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The family Court vide judgment dated 22.08.2019 dismissed the counterclaim of the Appellant and allowed the petition of the Respondent. Being aggrieved by the said judgment, the Appellant has presented the above appeal before this Hon'ble Court seeking grant of decree of dissolution of marriage by dissolving the marriage between the Appellant and Respondent.

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During the pendency of the appeal bearing M.F.A. No.8505/2019, the Appellant and the Respondent (" Petitioners "), who are joint petitioners, in the present petition, in their practical wisdom and considering the fact that their marriage has practically broken and irretrievable, have mutually discussed along with their respective family and well-wishers and agreed to mutually dissolve their marriage on the terms and conditions as contained in this joint application:

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There is no legal impediment to the dissolution of the marriage and the decision to separate and apply for a divorce by mutual consent. This decision has been arrived, mutually and after due consideration and considering utmost importance to all aspects of the matrimonial ties between the Petitioners and the case. There is no coercion or compulsion on either of the Petitioners to arrive at this mutual decision and the same has been taken out of their free will and own volition. It is further submitted that elders from both sides have been properly consulted and thereafter this decision has been arrived at.

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ii. The Appellant has furnished the details of Gold Jewelry, Cash, residential plot, gifts, sarees, and books as per the following, which is more fully described in the separate schedule as stated herein below, which is jointly signed by both the Petitioners forming part of this Petition, towards full and final settlement of all Respondent's claims and expectations out of matrimonial dispute, including but not limited to permanent alimony. The Appellant undertakes to

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handover the items in Schedules A, B, D, E and F before this Hon'ble Court upon consideration of this Application and with the kind leave of this Hon'ble Court. The Appellant also undertakes to register the Gift Deed in respect of the residential Plot in Schedule C in favour of the Respondent on the mutually agreed date. The aforementioned schedules are as follows:

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Sl. No.	Details	As per Schedule
1.	GOLD JEWELS	Schedule A
2.	CASH WORTH	Schedule B
	Rs.53,77,673/-
3.	PLOT	Schedule C
4.	GIFTS	Schedule D
5.	SAREES	Schedule E
6.	BOOKS	Schedule F

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iii. Both the Petitioners agree that they have no further claim(s) against one another over either movable or immovable properties of one another including the monthly maintenance or any other form of claim.

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iv. Both Petitioners submit that there are no issues in the wedlock between them.

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v. Both the Petitioners undertake not to seek any monetary reliefs including maintenance, compensation or otherwise against each other during the subsistence of the marriage or any date in future with reference to the marriage solemnized on 12.06.2014 or nay proceedings in connection with this.

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vi. Both the Petitioners have undertaken to lead their independent life without any interference in each other's life.

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vii. Both the Petitioners shall undertake not to speak ill about their respective families and refrain from making any comment adverse to the other Petitioners and his or her families i.e. within the other parties' knowledge during the subsistence of the marriage. Both the Petitioners shall undertake to state that the marriage has been dissolved mutually on the ground of irretrievable breakdown of marriage and refrain from making any allegations against the other party.

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viii. Both the Petitioners unconditionally withdraw the allegations levelled against each other and/or their families as made in their respective pleadings and submission before the Family Court in M.C.No.352 of 2015.

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ix. The Respondent undertakes to withdraw the proceedings in Crl.M.C.No.81 of 2019 pending before the 1st Additional Family Court Mangalore pursuant to receiving the Schedule A to F properties.

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ix. The Respondent undertakes to withdraw the proceedings in Crl. M.C. No.81 of 2019 pending before the 1st Additional Family Court Mangalore pursuant to receiving the Schedule A to F properties.

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x. Both the Petitioners submit that there has been no collusion or any coercion or force in filing this petition for divorce by mutual consent considering their practical wisdom in their married life so far.

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6. JURISDICTION:- This joint petition is filed by the

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Appellant and the Respondent under the Section 13B of the Hindu Marriage Act, 1955 in the above appeal in the light of the decision of this Hon'ble Court in M.F.A. No.7542/2013 (FC) in the case of Manjunath A T v Sheela M N. Therefore, this Hon'ble Court has the jurisdiction to consider this joint petition seeking dissolution of marriage on mutual consent, in the matrimonial justice.

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PRAYER

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Wherefore, the Appellant and Respondent, being Joint Petitioner herein most humbly pray before this Hon'ble Court to pass a decree of divorce, dissolving their marriage solemnized on 12.06.2014 at C.V. Nayak Hall, Kadri Road, Mangalore and pass such order/grant such other relief/s as this Hon'ble Court deems fit in the facts and circumstance of this case, in the interest of justice.

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Sd/-

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Advocate for Appellant/Petitioner

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Sd/- Appellant/Petitioner

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sd/Advocate for Respondent/Petitioner

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Place: Bengaluru Sd/- Date: 28.01.2021 Respondent/Petitioner"

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"SCHEDULES AS STATED IN THE JOINT PETITION UNDER SECTION 13B(1) OF THE HINDU MARRIAGE ACT, 1955

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GOLD JEWELS : SCHEDULE - A

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Ear Mati Gold - 1 Pair

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Jhumki Gold - 1 Pair

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Gold Necklace With Green and Red Stones

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Short Single Set

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Misri Malle, (Kaasina Sara) Golden Long Single set

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Gold Necklace With Almond Shape Pendant Long Single Set

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Mothi Kanti (Pearl) With Red Stones Single Set

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Mangalsutra With Red Corals Single Set

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Kariamani Bangles - 1 Pair

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Motibangles 1 Pair

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Plain Gold Bangles - 4 Numbers

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Kariamani Bracelet - 1 Number

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Diamond Ring Single

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Stones As Shown On Whatsapp

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Diamond Seven Stone Ear Ring Kutik - 1 Pair

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Silver Diya For Kumkum And Haldi - 2 Numbers

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Diamond Small Ear Ring Seven Stone 1 Pair

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Diamond One Stud Ear Ring 1 Pair

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Blue Stone Necklace

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Blue Stone Bangle

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Gold Remaining From Mangalsutra

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Sunita Gold Watch

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Artificial Gold Items - 3 Bangles, 1 Bracelet, 3 Pair Jhumkies.

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CASH : SCHEDULE - B

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Alimoney - Rs. 30,00,000/-

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Payment of Cash received during reception at

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Trichy Rs.35,673/-,

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Expenses of Restitution of Conjugal right case at Mangalore Rs.1,65,000/-

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Maintenance case at Mangalore expense Rs.45,000/-

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Appeal of Restitution of Conjugal right case at Bangalore expense Rs.75,000/-

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Silk saree cost of Rs.8,000/-

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Silk saree cost Rs.6,000/-

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Cost of artificial jewelry Rs. 3,000/-

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Cost of watch and cloths bought during the Marriage Rs.25,000/-,

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10.Wedding expenses Rs.7,50,000/-

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11.Cost of wedding saree Rs.15,000/-

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12.Cost of 3 bangles set and 3 necklace Rs.12,50,000/-.

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Total Rs.53,77,673/-.

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PLOT: SCHEDULE - C

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Transfer by way of gift of Plot No. 42 at Nisarga Layout (nirman shelters) 1,200 sq.ft @ rs.3500/bearing as follows:

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All that piece and parcel of the converted residential immovable property bearing Site No. 42 in "NISARG" Layout situated at Sy. No.136 of Harapanahalli, Jigani Hobli, Anekal Taluk, Bangalore District, within the administrative jurisdiction of Bangalore Urban District and including all rights, privileges and appurtenances thereto and sigh measuring 30'0" X 40'0" and bounded as follows:

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East By: Road West By: Site No.39 North By: Site No.43 South By: Site No. 41

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Measuring north to South 30'0" and east to west by 40'0" duly converted for residential site vide orders No.ALN/SR(A)363/95-96 dated 15.06.1996, Assistant Commissioner Bangalore, Bangalore South SubDivision, Government of Karnataka.

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GIFTS : SCHEDULE - D

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Silver colour gaja lakshmi in glass

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Ganesh in a chariot

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Radha krishna idol enclosed in glass

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Silver colour ganesh

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Silver colour ganesh

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Silver colour ganesh (small)

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Silver colour ganesh in glass

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Small silver Krishna

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Silver venkatesha in glass

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Ajantha ganesh clock

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Ayush Storage water purifier

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Wall hanging ganesh

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3 piece mixing bowl set

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Showcase clock

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Year glass container

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2 birds showpiece

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Silver ganesh in frame

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Kraft double wall bowl with glass lid

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Glass vase

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Revolving stage horse

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Radha krishna frame

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Ganesh frame photo

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Radha krishna frame

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Ruby small airtight jar (2)

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Heart shaped glass piece

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Tissot watch

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Titan raga watch

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Flower show piece

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Artificial bouquet

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Silver mannai (big)

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Silver mannai (small)

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Radha krishna photo frame

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Radha krishna photo frame, 34. Ganesh in leaf photo frame

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Bharath 6 piece mug

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Plastic sprouting case

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Kailash photo frame

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Ganesh(bit)photo frame.

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SAREE : SCHEDULE - E

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Blue colour with golden dots

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Green colour with purple border

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Peacock blue with maroon border

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Orange colour with yellow border

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Peacock blue colour

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Orange and green colour

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Blue and yellow chudidhar

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Blue yellow green red chudhidhar

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BOOKS : SCHEDUEL - F

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Minimum hinduism practice

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Speaking of films - satyajit ray

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The subject of cinema

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Understanding media theory

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VERIFICATION

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We, the Appellant and Respondent, being Joint Petitioners herein, do hereby jointly verify and declare that the averments made in paragraphs 1 - 6 of the above joint Petition are true to the best of our knowledge, belief and information.

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Sd/-

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Place: Bengaluru APPELLANT/APPLICANT

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Sd/-

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Date: 28.01.2021 RESPONDENT/APPLICANT"

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6. We have also perused the application filed by

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the parties under Section 13B(2) of the Act, which is also supported by a joint affidavit filed by the parties. It is noted that the appellant and the respondent were married on 12/06/2014 and since July 2015, they have been living separately. There is no possibility of a cohabitation or reconciliation of their differences. In the circumstances, placing reliance on the judgment of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [(2017)8 SCC 746] , we allow the application filed by the parties under Section 13B(2) of the Act.

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We have perused the terms and conditions of the petition filed under Section 13B(1) of the Act.

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Learned counsel for the appellant submitted that the gold jewels detailed in Schedule - A have been handed over by the appellant/husband to the respondent/wife today (05/02/2021) before this Court. Learned counsel for the respondent as well as the respondent submitted that they have verified the same and acknowledged receipt of the same.

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Appellant's counsel next submitted that the amounts to be paid by the appellant to the respondent as detailed in Schedule - B amounting to Rs.53,77,673/(Rupees fifty three lakh, seventy seven thousand, six hundred and seventy three only) has been paid vide cheque bearing No.000049, dated 05/02/2021, drawn on Kotak Mahindra Bank, Trichy in favour of Lakshmi Shenoy/respondent/wife. Learned counsel for the appellant handed over the said cheque to the learned counsel for respondent, who in turn handed over the cheque to the respondent/wife, who has acknowledged the receipt of the same. He submitted that the said cheque shall be honoured.

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Appellant's counsel next submitted that the immovable property detailed in schedule - C of the petition has been gifted by the appellant to the respondent yesterday (04/02/2021) by way of registration of a gift deed before the Sub-Registrar. Learned counsel for the respondent submitted that the respondent has received the original gift deed.

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Appellant's counsel submitted that the movable items in Schedules - D, E and F have been handed over by

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the appellant to the respondent, who acknowledges receipt of the said items.

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Respondent's counsel submitted that in view of the disposal of this appeal, the respondent shall withdraw Crl.M.C.No.81/2019, which is pending before the I Additional Family Court, Mangaluru, pursuant to receipt of Schedule - M properties.

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We have perused the terms of the petition filed by the parties under Section 13B(1) of the Act. On perusal of the same, we find that they are lawful and there is no legal impediment to accept the same. Hence, the same are accepted by us.

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Consequently, the judgment and decree passed in M.C.No.352/2015, passed by the I Additional Principal Judge, Family Court, Dakshina Kannada, Mangaluru, dated 22/08/2019 passed under Section 9 of the Act as well as the counter claim sought for by the appellant/husband are set aside and substituted by this judgment.

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The marriage solemnized between the parties on 12/06/2014 at C.V.Nayak Hall, Kadri Road, Mangaluru,

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is dissolved by a decree of divorce by mutual consent under Section 13B(1) of the Act.

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Petition filed under Section 13B(1) is allowed.

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Registry to draw up a decree in the aforesaid

terms.

Sd/JUDGE

Sd/JUDGE

Mr. Dinker M Pai v. Mrs.Laxmi Shenoy

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Mr. Dinker M Pai v. Mrs.Laxmi Shenoy

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