Allowed

Smt Vedashree v. Sri B G Deepak Kumar

Karnataka HC5 Feb 2021MFA/9863/2013

Case brief

AI extract

What is this about?

The High Court disposed of two mutual appeals challenging a family court order that granted divorce to the husband while rejecting the wife's restitution petition. The wife filed fresh mutual consent divorce petitions. The court allowed the waiver of the statutory six-month period, accepted a mutual consent settlement involving alimony and custody terms, and dissolved the marriage.

What did the court decide?

Set aside impugned judgments and dissolved the marriage by a decree of divorce by mutual consent; waiver of six-month period allowed; permanent alimony of Rs.38 lakhs awarded with mandatory attachment

Smt Vedashree Vs Sri B G Deepak Kumar — 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.10281/2013 (FC) C/W

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M.F.A. No.9863/2013 (FC)

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IN M.F.A. No.10281/2013

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BETWEEN:

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SMT. VEDASHREE @ SHILPA, AGED ABOUT 24 YEARS, W/O B.G. DEEPAK KUMAR, D/O. R. PUTTARAJU, R/A NO.14, M.R. LANE, MANAVARTHEPETE, BANGALORE - 560 059. ... APPELLANT

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(BY SRI. SHRIDHARA K., ADVOCATE)

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AND:

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SRI. B.G. DEEPAK KUMAR, AGED ABOUT 34 YEARS, S/O. S. GOPALAKRISHNA, R/AT NO.519, 9^TH MAIN ROAD, HAMPINAGAR, R.P.C. LAYOUT, VIJAYNAGAR II STAGE, BANGALORE - 560 040. ... RESPONDENT

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(BY SRI. VISHNUMURTHY, ADVOCATE)

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THIS M.F.A. IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 11.10.2013 PASSED IN M.C.NO.1323/2011 ON THE FILE OF THE VI ADDITIONAL PRINCIPAL JUDGE, FAMILY

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COURT, BENGALURU, REJECTING THE PETITION FILED UNDER SECTION 9 OF THE HINDU MARRIAGE ACT, FOR RESTITUTION OF CONJUGAL RIGHTS.

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IN M.F.A. No.9863/2013

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BETWEEN:

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SMT. VEDASHREE @ SHILPA, AGED ABOUT 24 YEARS, W/O B.G. DEEPAK KUMAR, D/O. R. PUTTARAJU, R/AT NO.14, M.R. LANE, MANAVARTHEPETE, BANGALORE - 560 059. ... APPELLANT

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(BY SRI. SHRIDHARA K., ADVOCATE)

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AND:

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SRI. B.G. DEEPAK KUMAR, AGED ABOUT 34 YEARS, S/O. S. GOPALAKRISHNA, R/AT NO.519, 9^TH MAIN ROAD, HAMPINAGAR, R.P.C. LAYOUT, VIJAYNAGAR II STAGE, BANGALORE - 560 040.

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... RESPONDENT

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(BY SRI. VISHNUMURTHY, ADVOCATE)

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THIS M.F.A. IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 11.10.2013 PASSED IN M.C.NO.308/2009 ON THE FILE OF THE VI ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING PETITION FILED UNDER SECTION 13(1)(i-a) OF HINDU MARRIAGE ACT.

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

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J U D G M E N T

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These appeals are listed for admission. They are filed by the wife assailing the judgment and decree dated 11/10/2013, passed by the VI Additional Principal Judge, Family Court at Bengaluru, in M.C.No.1323/2011 and the judgment and decree passed by the very same Court in M.C.No.308/2009.

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M.C.No.1323/2011 was filed by the

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appellant/wife 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 Judgment and decree dated 11/10/2013, the Family Court at Bengaluru rejected the said petition. M.C.No.308/2009 was filed by the respondent/husband under Section 13(1)(i-a) of the said Act seeking dissolution of marriage between the parties solemnized on 17/04/2006, as per Hindu rites and customs at N.A.K. Kalyana Mantapa, Mysore Road, Bengaluru. By the judgment and decree dated 11/10/2013, the said petition was allowed. Hence, these appeals have been preferred by the wife/appellant.

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Learned counsel for the respective parties submitted that during the pendency of these appeals, the

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parties have decided to resolve their differences and come to a settlement. As a result, they have filed a petition under Section 13B(1) of the Act seeking dissolution of their marriage by a decree of divorce by mutual consent subject to certain terms and conditions. The parties were married in the year 2006 and they have been living separately since the year 2009. That there is no possibility of a reconciliation between them nor would they cohabit together in future. Hence, an application has been filed under Section 13B(2) of the Act seeking waiver of the period of six months stipulated therein so that the dissolution of marriage by a decree of divorce may be granted immediately.

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Learned counsel for the respective parties submitted that the respondent/husband would pay a sum of Rs.38,00,000/- (Rupees thirty eight lakh only) by demand drafts: (a) Rs.8,00,000/- (Rupees eight lakh only) in favour of the appellant/wife and (b) a sum of Rs.30,00,000/- (Rupees thirty lakh only) in favour of their son Sujan D., as noted in the petition filed by them under Section 13B(1) of the Act. Learned counsel for the respective parties also submitted that these appeals may be disposed of in terms of the petition filed by them under

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Section 13B(1) of the Act by allowing the application filed under Section 13B(2) of the Act and by substituting the main judgment and decrees passed by the Family Court by the judgment in these appeals dissolving the marriage between the parties by a decree of divorce by mutual consent subject to the terms and conditions mentioned in the petition.

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The parties are present before the Court. They

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have been identified by their respective counsel.

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When queried by the Court, the parties stated that they have, indeed, agreed to resolve their disputes and have decided to seek dissolution of their marriage by a decree of divorce by mutual consent. Therefore, they have filed their petition under Section 13B(1) of the Act and an application under Section 13B(2) of the Act and that these appeals may be disposed of by granting divorce by mutual consent to the parties on the terms and conditions stated in the petition.

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The parties further stated that they have

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arrived at a settlement on their own free volition without there being any coercion or undue influence from any side.

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They further stated that they would abide by the terms of

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the settlement arrived at between them.

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In the circumstances, we have taken the petition filed under Section 13B(1) of the Act on record. It is noted that it is signed by the appellant/wife as well as the respondent/husband and their respective advocates and it is supported by a verification as well as a joint verifying affidavit filed by the parties. The petition reads as under:

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" PETITION U/S 13(B)(1) OF THE HINDU

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MARRIAGE ACT:

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The Appellant/Applicant No.1 and the Respondent/Applicant No.2 above named beg to submit as follows:

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The address of the Appellant/Applicant No.1 and the Respondent/Applicant No.2 for the purpose of service of summons, notice etc. from this Hon'ble court is shown in the cause title and also the Appellant/Applicant No.1 may be served through her counsels Sridhara. K & Associates, Advocates, NO.8, Prabhath Complex, No.318/319, K.G. Road, Bangalore-09 and Respondent/Applicant No.2 may also be served through his counsels Sri. Vishnumurthy & Associates, Advocates, 1/3, Zinka Plaza, 6^th Cross, Gandhinagar, Bangalore-9.

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The Appellant/Applicant No.1 and the Respondent/Applicant No.2 submit that they were the

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husband and wife and both are Hindus by religion. The marriage between had took place on 17/04/2006, at N.A.K. Kalyana Mantapa, Mysore Road, Bangalore, as per the customs prevailing in their community in the presence of relatives and well wishers.

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The Appellant/Applicant No.1 and Respondent/ Applicant No.2 humbly submits that out of their wedlock they are having one son namely Master Sujan, who is now aged about 12 years 5 month.

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The Appellant/Applicant No.2 and the Respondent/Applicant No.2 humbly submits that thereafter due differences between them the Respondent had approached the learned 6^th Addl. family judge, Bangalore u/s 13(1)(i-a) of the H.M. Act, against the Appellant in M.C.No.308/2009, seeking dissolution of their marriage on the ground of cruelty and the Appellant had filed the case seeking restitution of conjugal rights u/s 9 of H.M. Act against the Respondent in M.C.No.1323/2011 and after hearing both sides the learned Family judge had allowed the petition by the Respondent in M.C.No.308/2009 and thereby dissolved the marriage between the appellant and the respondent and dismissed the petition filed by the appellant in M.C.No.1323/2011 vide it's judgment and decree dated 11.10.2013.

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The Appellant/Applicant No.1 humbly submits that thereafter she had filed the above appeal challenging the judgment and decree passed by the learned Family judge in M.C.No.308/2009 and she had filed M.F.A.No.10281/2013, and also challenging the dismissal of petition filed by the appellant for conjugal

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rights u/s 9 of H.M. Act in M.C.No.1323/2011, before this Hon'ble court in M.F.A.No.9863/2013.

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The Appellant/Applicant No.1 and Respondent/ Applicant No.2 both are hereby withdrawn their whatever the allegations made by them each other in the above petition before the family court and in the appeal filed before this Hon'ble Court.

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The Appellant/Applicant No.1 and Respondent/ Applicant No.2 humbly submit that out of their wedlock they have one son by name Sujan D., who is now aged about 12 years, 5 months.

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The Appellant/Applicant No.1 & Respondent/ Applicant No.2 humbly submit that during their marital life the differences were arose between them and the Appellant/Applicant No.1 & Respondent/Applicant No.2 were uncompromising with each other. Under the said circumstances, the Appellant/Applicant No.1 & Respondent/Applicant No.2 have been living separately. Thus, the Appellant/Applicant No.1 & Respondent/Applicant No.2 have been living separately each other from 2009 this also consequently resulted in irretrievable break down of their marriage.

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The Appellant/Applicant No.1 and Respondent/ Applicant No.2 humbly submit that at this stage their well wishers, friends and relatives of the petitioners tried their best to bring harmony and to re-establish the cordial living, but unfortunately all their efforts proves futile and were in vain and the Appellant/Applicant No.1 & Respondent/Applicant No.2 have discussed all the aspects of their lives threadbare

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and taken a conscious decision to get their marriage dissolved by a decree of divorce by mutual consent, since they are unable to live together and lead a marital life.

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The Appellant/Applicant No.1 and Respondent/ Applicant No.2 humbly submit that in the said Circumstances after reasonable thoughts and rational deliberations, the Appellant/Applicant No.1 & Respondent/Applicant No.2 have decided to mutually agreed for the dissolutions of their marriage and as such there is no coercion, force, collusion, fraud, misrepresentation to arrive at the conclusion to dissolve the marriage which the Appellant/Applicant No.1 & Respondent/Applicant No.2 think is the most logical for them and thus they are opting for dissolution of the marriage, out of their own free will and wish.

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The Appellant/Applicant No.1 and Respondent/ Applicant No.2 humbly submit that during the pendency of the aforesaid appeals, both the Appellant/ Applicant No.1 & Respondent/Applicant No.2 respondent have compromised their disputes and entered into this compromise as per the terms and conditions mentioned as under:

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A. Permanent Alimony: This day, before this Hon'ble Court, the Respondent/Applicant No.2 has paid an amount of Rs.38,00,000/- (Rupees Thirty Eight Lakhs Only) as permanent alimony to the Appellant/Applicant No.1 and also her son namely Master Sujan .D and details of payment are as under:

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B. By way of Demand Draft and the bearing No.068632 drawn on City Union Bank Ltd, Chikpet Branch, Bangalore Dated 30/12/2021, in favour of Appellant/Applicant No.1 and the Appellant/Applicant No.1 acknowledges receipt of Rs.8,00,000/- (Rupees Eight Lakhs Only).

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C. By way of Demand Draft and the bearing No.086483, drawn on State Bank of India, Chandralayout Branch Dated 30/1/2021, 375307 and 375308, drawn on Bank of India, R.P.C. Layout Branch, Bangalore each for an amount of Rs.10,00,000/- (Ten Lakhs only) totally for an amount of Rs.30,00,000/- (Thirty lakhs Only) in favour of son of the appellant/Applicant No.1 namely Master Sujan .D and the Appellant/Applicant No.1 hereby acknowledges the receipt of Rs.30,00,000/- (Rupees Thirty Lakhs Only) on behalf of minor son by name Sujan .D.

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D. The Appellant/Applicant No.1 and the respondent/ Applicant No.2 further submit that the aforesaid amount of Rs.38,00,000/- (Thirty Eight Lakhs Only) is towards the permanent alimony towards the appellant/Applicant No.1 and her son, which is full and final settlement. And the appellant and her son hereby undertakes that there is no further any other claim by herself nor her son for maintenance, expenses, alimony or compensation or share or any other purpose, present or in future from the respondent either in respect of his movable or immovable property.

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E. Arrears of Maintenance: The Appellant/Applicant No.1 had filed a petition in Crl.Mis.No.60/2011 before

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the learned Magistrate seeking relief under various provisions of D.V. Act, but the same was dismissed by the learned magistrate, thereafter the appellant had challenged the said order before learned Session in Crl.Ap.No.702/2019 and the same allowed by the learned session judge where in it is ordered that the respondent should pay a maintenance of Rs.6,000/per month to the appellant and Rs.4,000/- to the son of the appellant from the date of filing of petition u/s 12 of the D.V. Act before the court below. Thereafter the Respondent had challenged the said order by filing Crl.Rev.Pet. No.1439/2019, before Hon'ble court and this Hon'ble court was pleased to stay the said order and also passed an interim order directing the respondent to pay a maintenance of Rs.2,000/- per month to each, from the date of the order of the first appellant court.

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F. As per the aforesaid interim order of this Hon'ble court there is pending of arrears for Payment is of Rs.64,000/- (till January 2021) from the respondent towards the Appellant and her son and out of arrears of Rs.64,000/-, Rs.20,000/- is already paid in favour of appellant on 06/02/2020 and the balance is of Rs.44,000/-.

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J. The above arrears of Rs.44,000/- includes in the aforesaid permanent alimony of Rs.38,00,000/(Thirty Eight Lakhs) and the appellant is ready to accept the same. Hence, there is no any arrears of maintenance to the appellant by the respondent whatsoever.

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K. In view of the aforesaid settlement the appellant/ Applicant No.1 states that there is no further any

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claim regarding maintenance ordered in Crl.Ap.No.702/2019 passed by the learned 64^th Addl. Session Judge, Bangalore and arrears of maintenance ordered in Crl.Rev.Pet.No.1439/2019 by this Hon'ble court and appellant had no objection to set aside the aforesaid order by allowing the Crl.Rev.Pet.No.1439/2019 filed by the respondent before this Hon'ble court.

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L. The appellant/Applicant No.1 states that there is no further any claim regarding maintenance and arrears of maintenance and she also undertakes to file memo before the V Addl. Family Court, Bangalore, seeking dismissal of the petition in Crl.Misc.No.258/2019.

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M. The Appellant/Applicant No.1 further submits that the aforesaid amount of Rs.38,00,000/- (Thirty Eight Lakhs only) is received toward permanent alimony for herself and child Master Sujan D. The Appellant and her son hereby undertake that they have no claim against the Respondent in respect of their permanent alimony.

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N. Closure of Pending Cases between the parties:

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O. The appellant/Applicant No.1 and minor son had also filed Crl.Mis.No.258/2019 seeking maintenance u/s 125 of Cr.P.C,. before learned V Addl. Principal Judge, Family Court, Bangalore and the same is still pending for adjudication and the Appellant hereby undertakes that she will withdraw the aforesaid case as not pressed in view of the above settlement.

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P. The appellant/Applicant No.1, who is the respondent in Crl.Rev.Pet.No.1439/2019, has no objection to allow the above revision petition filed by the respondent/Applicant No.2 herein (husband), by setting aside the order passed by the 64^th Addl. City Civil & Sessions Judge, Bangalore in Crl.Ap.No.702/2019 and she hereby undertakes to file a memo for the same. Both the parties undertake that there are no other cases or any other petition before 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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Q. The appellant/Applicant No.1 who had filed the M.F.A.No.9863/2013 against the respondent/Applicant No.2 before this Hon'ble court is hereby agreed to withdraw the said case by filing memo as not pressed, before this Hon'ble court in the said case.

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R. Custody of Child: The parties submit that due to their wedlock they are having one son namely Master Sujan D., who is now aged about 12 years 5 months and at present he is in the custody of Appellant (Mother) 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 Master Sujan D.

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S. The appellant/Applicant No.1 and respondent/Applicant No.2 further declare that they have no obligations, responsibilities or demands against one another and the parties are at liberty to

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lead their future life independently without interference by one another.

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T. The appellant/Applicant No.1 and respondent/ Applicant No.2 humbly submit that they have agreed for divorce voluntarily and they have no claims against each other regarding any jewellery or silver articles or any house hold articles.

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G. The appellant/Applicant No.1 and respondent/ Applicant No.2 humbly submit they have voluntarily entered into compromise and there is no coercion, fraud, force or any misrepresentation by anybody to enter into above settlement.

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H. The appellant/Applicant No.1 humbly submits that in view of the aforesaid settlement, marriage between the Appellant and the Respondent may be dissolved. Accordingly, the above appeal may be disposed of in terms of this compromise petition.

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P R A Y E R

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WHEREFORE, the Appellant/Applicant No.1 and the Respondent/Applicant No.2 humbly pray that this Hon'ble court may be pleased to:

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a. Dissolve the marriage-dated 17.04.2006 at N.A.K Kalyana Mantapa, Mysore Road, Bangalore.

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Sd/Sd/-

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Advocate for Appellant/Applicant No.1. Appellant.

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Sd/Sd/-

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Advocate for Respondent/Applicant No.1. Respondent.

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VERIFICATION

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We, Vedashree @ Shilpa P. and B.G. Deepak Kumar, the Appellant/Applicant No.1 and the Respondent/Applicant No.2 herein do hereby declare that what is stated above are true to the best of our knowledge, information and belief.

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Sd/Bangalore. Appellant/Applicant No.1 Date: 05/02/2021

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Sd/Respondent/Applicant No.2"

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Parties have also filed an application under Section 13B(2) of the Act seeking waiver of the period of six months stipulated therein.

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We have perused the said application, which is supported by a joint affidavit. It is noted that the parties are not living together since the year 2009 and they have stated that there is no possibility of reconciliation between them nor possibility of cohabitation. 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], the application filed by the parties under Section 13B(2) of the Act is allowed.

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Learned counsel for the respondent/husband has handed over four demand drafts in full and final settlement of the claim, three in favour of the son Sujan for a total sum of Rs.30,00,000/- (Rupees thirty lakh only) and one in favour of the appellant/wife Smt. Vedhashree @ Shilpa P., for a sum of Rs.8,00,000/- (Rupees eight lakh only). The same are accepted by learned counsel for the appellant/wife, who has in turn handed over the demand drafts to the appellant, who has acknowledged the receipt of the same.

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We have perused the terms of 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 to accept the same. The parties have no further claims as against each other.

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In the circumstances, the judgment and decree passed in M.C.No.1323/2011, by the VI Additional Principal Judge, Family Court at Bengaluru, dated 18/12/2003 under Section 9 of the Act and the judgment and decree passed in M.C.No.308/2009 by the very same Court of even date under Section 13(1)(ia) of the Act are set aside and substituted by the judgment passed in these appeals.

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The marriage between the parties that was solemnised on 17/04/2006 at N.A.K. Kalyana Mantapa, Mysore Road is dissolved by a decree of divorce by mutual consent. Petition filed under Section 13B(1) of the Act is

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allowed.

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Registry is directed to draw up a decree in the

aforesaid terms.

Sd/JUDGE

Sd/JUDGE

Smt Vedashree v. Sri B G Deepak Kumar

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Smt Vedashree v. Sri B G Deepak Kumar

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