Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 381 (KAR)

ARVIND KUMAR v. SHITAL VERMA

2017-02-07

A.S.BOPANNA

body2017
ORDER : The petitioner is before this Court assailing the order dated 02.01.2016 passed on I.A.No.2 in M.C.No.2858/2013. The said order was passed while considering an application which was filed under Section 26 of the Hindu Marriage Act, 1955, (‘the Act’ for short) seeking interim maintenance towards maintenance of the child. 2. The Court below through the order dated 02.01.2016 had disposed of the said application granting Rs.5,000/-per month which is assailed herein. In the instant petition, this Court on taking note of the larger issues involved in the dispute between the parties, being of a nature which would have to be mediated, had referred this petition to the Bangalore Mediation Centre through the order dated 29.09.2016. In the Bangalore Mediation Centre, the Mediator after having held several rounds of discussion with the petitioner and the respondent and also taking into consideration that apart from the petition in M.C.No.2858/2013, a petition relating to the custody of the child in G & WC No.150/2013 was pending, had held a composite discussion and the Memorandum of settlement dated 31.01.2017 has been entered in order to bring all litigations to an end. The said Memorandum of settlement has been dispatched to this Court along with the report of the Bangalore Mediation Centre. It is in that circumstance the petition is listed before this Court to consider the same. 3. Though the instant petition relates to the interim order passed in M.C.No.2858/2013 and the Memorandum of settlement entered into between the parties is to be recorded in the main proceedings in M.C.No.2858/2013 and G & WC No.150/2013 and for the said purpose, the Memorandum is to be dispatched to the Court below, it is also necessary to make further observations in the instant petition so as to enable the Family Court to act in the appropriate manner to take into consideration the Memorandum of settlement and dispose of the matter in accordance with the agreement reached between the parties. 4. While adverting to this aspect of the matter at the outset, I have enquired from the petitioner and the respondent who are personally present before this Court as to whether they have voluntarily expressed their views in the process of mediation and the Memorandum of settlement sent to this Court is with their consent. 4. While adverting to this aspect of the matter at the outset, I have enquired from the petitioner and the respondent who are personally present before this Court as to whether they have voluntarily expressed their views in the process of mediation and the Memorandum of settlement sent to this Court is with their consent. They have affirmed the same and submit that they stand by the Memorandum of settlement and would require the Court to pass orders accordingly. 5. In this regard, what is also to be kept in view is as to whether a settlement of the present nature can be recorded in the present scope of the main proceedings. In that regard, it is brought to the notice of this Court by the learned counsel appearing for the petitioner and the learned senior counsel for the respondent that when an issue had arisen for consideration in the case of N.Ramachandrappa vs. M.Geetha (ILR 2010 Kar 1896), this Court while taking into consideration a Memorandum of settlement which had been entered into between the parties after mediation has extensively referred to the provision contained in Section 89 of CPC and also the Mediation Rules and in that light has arrived at the conclusion that the settlement as entered into between the parties could be accepted and the Court can take the same into consideration for ultimately granting the decree including dissolution of marriage. On this aspect of the matter, the learned Senior Counsel has also been fair in bringing to the notice of this Court that a learned Judge of this Court in the case of P.S.Bhrugu Datta Kirthi vs. Deepthi K.P. (W.P.No.51769/2016 dated 13.12.2016) while taking note of an order dated 15.03.2016 passed by the Addl. Prl. Judge, Family Court, wherein the Memorandum of settlement entered into before the Mediation Centre had been rejected on the ground that in a petition filed under Section 13(1)(ia) of the Act, the dissolution of marriage cannot be granted unless the grounds in the said provision is satisfied, has approved the order made by the Family Court. In that view, it has become necessary to iron out the creases and clarify the position through this order. 7. In that view, it has become necessary to iron out the creases and clarify the position through this order. 7. In that backdrop, a perusal of the said order in P.S.Bhrugu Datta Kirthi (supra) no doubt would disclose that the learned Judge has taken into consideration that the Family Court had referred to the decisions of the Hon'ble Supreme Court as is referred therein and in that light approved the order of the Family Court by recording that the learned counsel were unable to dispute the position. While taking note of the said aspect, it is also to be kept in view that prior to that order, this Court in several cases including the case of Santosh Vijay Kumar vs. Kokila Narayan (W.P.No.32495/2016 dated 25.08.2016) had taken note of the earlier decision of this Court in the case of N.Ramachandrappa (supra) and followed the same to direct the Family Court to accept similar settlement to dissolve the marriage. Hence, at the outset, it is seen that the order passed in the case of P.S.Bhrugu Datta Kirthi (supra) is without reference to the earlier orders passed by this Court, more particularly the order in the case of N.Ramachandrappa (supra) wherein the learned Judge of this Court had also taken into consideration the decisions of the Hon'ble Supreme Court, distinguished the same and while doing so, the learned Judge had kept in view and relied on the decision in the case of Salem Advocate Bar Association, Tamilnadu vs. Union of India ( AIR 2005 SC 3353 ) wherein the Hon'ble Supreme Court had made a detailed consideration with regard to all aspects relating to amendment to the CPC and in that regard, a consideration relating to the scope of Section 89 of CPC was also made. 8. Therefore in the said background, even if the decision in the case of Sanjeeta Das vs. Tapan Kumar Mohanty [ (2010)10 SCC 222 ] and Vennangot Anuradha Samir Vs.Vennangot Mohandas Samir (MANU/SC/1378/2015) as relied on by the Family Court and approved in P.S.Bhrugu Datta Kirthi (supra) are kept in view, the said decisions cannot be treated as a precedent for consideration relating to the matters wherein a reference is made under Section 89 of CPC and the settlement is entered keeping in view the provisions of the Mediation Rules. In the case of Vennangot Anuradha Samir (supra), it was a circumstance wherein the Hon'ble Supreme Court did not find the settlement to be conscionable inasmuch as the consent given by the wife to receive the alimony and agree for the divorce, was because the money was needed for the treatment. In that view, the free consent could not be assumed. The Court in that case has in fact observed that in the peculiar facts on seeing the predicament of the wife due to illness, it was not satisfied with the very settlement that had been entered into between the parties and noted the disadvantage at which the wife had been placed due to her illness. In the case of Sanjeetha Das (supra), it is in a circumstance where the High Court had accepted the affidavit and passed an order which was questioned by one of the parties before the Hon'ble Supreme Court. It was therefore not in the circumstance where the provisions of Section 89 of CPC was invoked and pursuant to a settlement between the parties, a Memorandum signed by both the parties was available before the Court and despite that it was not accepted. 9. In the present facts, when the Memorandum has been entered into in the Mediation and when the petition is taken up before this Court, both the parties stand by the agreement, there is no reason to discard such agreement though it is entered into in a petition under Section 13(1)(ia) and (ib) and the consideration for dissolution of marriage is being made by the agreement of the parties. At best the Court can look into the terms agreed in the settlement to take note as to whether any of the terms is illegal, unconscionable or opposed to public policy. If that test is satisfied and the parties confirm the terms of settlement, the same is required to be accepted and the proceedings be terminated in terms of the settlement. 10. Therefore in the said circumstance, the Court below will have to once again ascertain from the petitioner and the respondent as to whether they stand by the agreement and if they consent to the same, the Court below shall pass the judgment in terms of the agreement entered into between the parties. 11. 10. Therefore in the said circumstance, the Court below will have to once again ascertain from the petitioner and the respondent as to whether they stand by the agreement and if they consent to the same, the Court below shall pass the judgment in terms of the agreement entered into between the parties. 11. Registry is directed to dispatch the report of the Bangalore Mediation Centre and the Memorandum of agreement entered into between the parties to the VI Addl. Prl. Family Judge, Bengaluru, to record the same in the manner as indicated above and pass the judgment and decree in terms of the settlement entered into between the parties. With these observations and directions, the petition stands disposed of.