Allowed

Smt Nandini S N v. Dr S v Prashanth

Karnataka HC21 Nov 2023MFA/1316/2021

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the Family Court's earlier order denying divorce. The Court waived the statutory six-month cooling-off period, granted the divorce by mutual consent, and declared the marriage dissolved.

What did the court decide?

The impugned judgment and decree dated 21.12.2020 are set aside; the joint petition under Section 13B is allowed; the marriage is dissolved by mutual consent.

Smt Nandini S N Vs Dr S v Prashanth — Matrimonial and Divorce | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:41753-DB MFA No. 1316/2021

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 21^ST DAY OF NOVEMBER, 2023

¶5

PRESENT

¶6

THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

¶7

AND

¶8

THE HON'BLE MR. JUSTICE K. V. ARAVIND

¶9

MISCELLANEOUS FIRST APPEAL NO. 1316/2021 (FC)

¶10

BETWEEN:

¶11

Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

¶12

SMT. NANDINI S. N., W/O DR. S. V. PRASHANTH, AGED ABOUT 34 YEARS, CURRENTLY R/AT, AM SCHWANENTEICH, 8, WH3/ZI 216, 09648 MITTWEDIA, DEUTSCHLAND, THROUGH HER POWER OF ATTORNEY, MR. S. N. VIJAYA KUMAR, S/O SHAKUNTALA SUVVI NEELAKANTHAIAH, AGED ABOUT 39 YEARS, R/O NO.42, FLAT NO.101, NAVAMI VENAKT-2, APARTMENTS, S. V. K. LAYOUT, BASAVESHWARANAGAR, BANGALORE-560079.

¶13

…APPELLANT

¶14

(BY SRI R. RAVISHANKAR, ADVOCATE)

¶15

AND:

¶16

DR. S. V. PRASHANTH, S/O S. M. VEERAIAH, VISHARADA, DOOR NO.3993/72,

¶17

¶18

NC: 2023:KHC:41753-DB MFA No. 1316/2021

¶19

19^TH MAIN, KUVEMPU NAGAR, MCC, 'B' BLOCK DAVANAGERE-577004.

¶20

…RESPONDENT

¶21

(BY SRI S. B. TOTAD, ADVOCATE)

¶22

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 28(1) OF THE HINDU MARRIAGE ACT, 1955 AND UNDER SECTION 19 OF THE FAMILY COURTS ACT,1984 AGAINST THE JUDGMENT AND DECREE DATED 21.12.2020 PASSED IN MC NO.167/2019 AND MC No.804/2016 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ETC.

¶23

THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, K. S. MUDAGAL J., DELIVERED THE FOLLOWING:

¶24

J U D G M E N T

¶25

Both parties and their counsel are present. The parties

¶26

are duly identified by their respective advocates.

¶27

The parties admit the voluntary execution of the joint petition under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short). On enquiry it is found that the parties are unable to re-union.

¶28

This appeal is filed by the wife challenging the judgment and order of the Principal Judge, Family Court, Bengaluru passed in M.C. Nos.167/2019 and 804/2016

¶29

3 - NC: 2023:KHC:41753-DB MFA No. 1316/2021

¶30

dismissing M.C. No.804/2016 filed by her for restitution of conjugal rights and decreeing M.C. No.167/2019 filed by the respondent - husband for dissolution of marriage under Section 13(1)(ia)(ib) of the Act.

¶31

The pre-requisites to seek grant of decree for divorce under Section 13B of the Act are as follows:

¶32

That the petition shall be taken up for consideration not earlier than six months of the presentation of the petition.

¶33

The parties should be living separately for more than one year prior to the presentation of the petition and there should be mutual agreement of the parties for dissolution of the marriage.

¶34

Such petition shall not be considered after 18 months of the presentation.

¶35

The records and statements of parties show that the parties are living separately since the year 2014. The parties are well qualified and have knowledge of the implications of their acts. They have agreed for dissolution of marriage by mutual consent. The enquiry with parties shows that there is no chance of reconciliation.

¶36

4 - NC: 2023:KHC:41753-DB MFA No. 1316/2021

¶37

The appellant admits receiving Rs.50 lakhs from the respondent and that she had given up all rights against him. The appellant's counsel hands over the Demand Draft of Rs.50 lakhs drawn on Canara Bank in favour of the appellant vide DD No.277840 dt.17.11.2023.

¶38

On hearing the parties, satisfied that there is no chance of re-union. The matter between the parties are pending since more than seven years. Therefore, it is a fit case to waive off the six months period as contemplated under Section 13B of the Act.

¶39

Our view is supported by the judgment of the Hon'ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur¹ in paragraph Nos.17 to 19 as under:

¶40

"17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off period was to safeguard against a hurried

¶41

1 2017 8 SCC 746

¶42

5 - NC: 2023:KHC:41753-DB MFA No. 1316/2021

¶43

decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

¶44

18. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The court has to have the regard to the context, the subject-matter and the object of the provision. This principle, as formulated in Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn., 2004), has been cited with approval in Kailash v. Nanhku [Kailash v. Nanhku, (2005) 4 SCC 480] as follows : (SCC pp. 496-97, para 34)

¶45

“34. … ‘The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oftquoted passage Lord Campbell said:“No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at

¶46

6 - NC: 2023:KHC:41753-DB MFA No. 1316/2021

¶47

the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.”’” (p. 338)

¶48

“‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the noncompliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.” (pp. 339-40)

¶49

19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory

¶50

¶51

NC: 2023:KHC:41753-DB MFA No. 1316/2021

¶52

period under Section 13B(2), it can do so after considering the following:

¶53

(i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

¶54

(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

¶55

(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

¶56

(iv) the waiting period will only prolong their agony.

¶57

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.”

¶58

¶59

NC: 2023:KHC:41753-DB MFA No. 1316/2021

¶60

The case is fully covered by the above said

¶61

judgment. Therefore, it is a fit case to grant decree of divorce by mutual consent as prayed for. Hence, the following:

¶62

O R D E R

¶63

Appeal is allowed .

¶64

The impugned judgment and decree dated 21.12.2020 in M.C. Nos.167/2019 and 804/2016 are hereby set aside.

¶65

The joint petition filed under Section 13B of the Act is hereby allowed.

¶66

The marriage between the appellant and the respondent solemnized on 29.12.2010 at Basava Bhavana, Parvati Nagar, Bellary is hereby dissolved by mutual consent.

¶67

The parties have withdrawn the allegations made against each other and they have no claim against each other.

Sd/JUDGE

Sd/JUDGE

VBS

List No.: 2 Sl No.: 6

Smt Nandini S N v. Dr S v Prashanth

Case brief

What is this about?

What did the court decide?

Smt Nandini S N v. Dr S v Prashanth

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

Smt S Mamatha Vs Sri N Ningegowda @ Raju

Sri. Giridar M Vs the Manager

Smt Srishti Daiv Vs Nil

P N Madhava Kumar Vs R Ramesha

The Managing Director Vs Smt Saraswathi K

Reliance General Insurance Co. Ltd. Vs Sri S Ramesh Kumar