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2019 DIGILAW 1615 (KAR)

G. Lokesh v. K. Vishalakshi D/o Katappa

2019-07-08

B.V.NAGARATHNA, K.NATARAJAN

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JUDGMENT : 1. Learned counsel for the respective parties submit that the compromise petition filed earlier on 27.06.2019 is not pressed in view of the fresh petition filed under Section 13-B(1) of the Hindu Marriage Act, 1955. 2. Submission is placed on record. 3. Hence, it is ordered that the compromise petition filed on 27.06.2019 is not pressed. 4. This appeal is filed by the appellant being aggrieved by the rejection of his petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for the sake of brevity) by which he sought dissolution of his marriage with the respondent by a decree of divorce. 5. Learned counsel for the respective parties submit that during the pendency of this appeal the parties have decided to file a petition seeking divorce by mutual consent under Section 13-B(1) of the Act; that the terms and conditions are stated in the petition filed under Section 13-B(1) of the Act. They submit that the said petition is supported by a joint affidavit filed by the parties; that they have agreed to end their marriage by a decree of divorce by mutual consent on their own volition and there being no undue influence or coercion from any quarter. They further submit that the parties have been living separately since the year 2012 and that is the basis for seeking the divorce by mutual consent under Section 13-B(1) of the Act. 6. Learned counsel for the respective parties also submit that an application has been filed under Section 13-B(2) of the Act seeking waiver of the period of six months prescribed under the said provision. They submit that in support of the said application a joint affidavit has been filed stating that since the parties have been residing separately since the year 2012 and they are not been able to resolve their disputes despite the rejection of the divorce petition filed by the respondent husband and they have arrived to settle the dispute by dissolving their marriage by mutual consent, it would not be in the interest of both the parties to extend the marriage by a further period of six months as stipulated under Section 13-B(2) of the Act and they could go their separate ways. They therefore submit that the said application may also be allowed. 7. They therefore submit that the said application may also be allowed. 7. The parties are present in Court and they have been identified by their respective counsel. When enquired, they submit that they have indeed resolved to dissolve their marriage by a decree being passed under Section 13-B(1) of the Act (divorce by mutual consent). They also submit that the application filed by them under Section 13-B(2) may be allowed. 8. In light of the aforesaid submissions, petition filed under Section 13-B(1) of the Act is taken on record. It reads as under: "The appellant and the respondent file the following compromise petition: 1. The appellant and the respondent have married on 23.12.2004 in Srirangapatna and they have two daughters by name Kum. Sinchana Lokesh L, born on 19.07.2006 and Kum. Sabhyatha Lokesh L, born on 23.02.2008. 2. The above appeal is filed by the appellant being aggrieved by the order dated 13.07.2015 in M.C. No. 535/2011 passed by the Court of the Judge, Additional Family Court, at Mysore, wherein his petition under Section 13(1)(ia) (ib) of the Hindu Marriage Act, is rejected. 3. Presently, the two daughters of the spouses are under the care and custody of the respondent herein. 4. the appellant has also challenged the order dated 28.04.2018 in G & WC No. 4/2016 passed by the Additional Senior Civil Judge and JMFC, Chamarajanagara, in M.F.A. No. 6630/2018, before this Hon'ble Court, which is unconditionally withdrawn in view of the present compromise petition. 5. That the spouses having got separated from 17.02.2012, there is not even a remotest chance of reconciling to have a graceful reunion. As such, both the parties have felt that, in their own interest and most importantly in the interest of their children, that they part ways by dissolving their marriage that took place on 23.12.2004. 6. Now, to set as naught all controversies and disputes between the appellant and respondent, it is mutually agreed between them that they shall part ways gracefully and that both of them would accept the modification of decree to the effect of dissolution of their marriage. 7. Both the children being under the care and custody of the respondent they shall continue to be so hereafter. 7. Both the children being under the care and custody of the respondent they shall continue to be so hereafter. However, it is agreed between the spouses that both their daughters shall be allowed to stay with the appellant during the first half of every school vacation during summer, Dasara and Christmas. 8. The respondent agrees that, she being gainfully employed as Assistant Chemist in Mysore Paints and Varnish, will not claim either for maintenance or permanent alimony for herself. The appellant agrees and that he undertakes that he would pay a total sum of Rs.1,00,000/- (Rupees one lakh only) every academic year commencing from 2019-2020 towards the educational expenses of both the daughters. The above said amount shall be remitted by the appellant to the following bank accounts. a. A/C. No. 0204-07161215-190001 Catholic Syrian Bank, Allammas Commercial Complex, Dewans Road, Devaraja Mohall, Mysore 570 001, the account being in the name of the 1st daughter Sinchana Lokesh L. b. A/c. No. 02040-7157182-190001 Catholic Syrian Bank, Allammas Commercial Complex, Dewans Road, Devaraja Mohall, Mysore 570 001, the account being in the name of the 2nd daughter Sabhatha Lokesh L. 9. The remittances of the educational expenses to the above said accounts shall be paid by the appellants: i. First installment shall be paid on or before 31st of March of every academic year. ii. Second installment shall be paid on or before 1st of September of every academic year. iii. Third installment shall be paid on or before 31st of December of every academic year. 10. In view of the above compromise the first installment of Rs.30,000/- towards the educational expenses shall be paid by the appellant which he shall remit to the accounts of his daughters above mentioned, within eight weeks from today. 11. In addition to this, the appellant further undertakes that he would bear all the expenses for the performance of the marriage of their children. 12. The respondent agrees and undertakes that she would bear all other expenses barring educational and marriage expenses of their daughters. 13. The appellant has no objection for the children to study in Sunandha Academy in Mysore city where they are presently pursuing their studies. 14. It is also agreed between the parties that either of them shall not indulge in any activity that would come in the way of peaceful life of the other. 15. 13. The appellant has no objection for the children to study in Sunandha Academy in Mysore city where they are presently pursuing their studies. 14. It is also agreed between the parties that either of them shall not indulge in any activity that would come in the way of peaceful life of the other. 15. Both the parties have already exchanged articles, documents and valuables that personally belong to them. The appellant has also returned all the original school records of the children to the respondent. 16. Further it is made clear that there shall be no claim of whatsoever nature, either movables or immovable's by one party over the other. 17. The parties to the appeal have entered into this compromise out of their own free will and volition. 18. In case of breach of any of the conditions by either of the parties, it is open for the aggrieved party to reopen this compromise petition and seek necessary directions from this Hon'ble Court. 19. The parties shall bear their own costs. Wherefore, the appellant and the respondent pray that this Hon'ble Court be pleased to accept the compromise petition and be pleased to modify the judgment and decree passed by the trial Court in terms of compromise petition, in the interest of justice." 9. We are satisfied that the parties have resided separately from the year 2012 onwards and that they have not been able to live together and they have mutually agreed that their marriage should be dissolved. Further, we are also satisfied that having regard to the long separation between the parties and there being no chance of the parties to reside together or resolve their disputes and being satisfied that the marriage between the parties has to be dissolved by a decree of divorce by mutual consent, we find it just and proper to allow the application filed under Section 13-B(2) of the Act. In this regard, we place reliance on a recent judgment of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur, (2017) AIR SC 4417. Hence, the application filed under Section 13-B(2) of the Act is allowed. 10. In this regard, we place reliance on a recent judgment of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur, (2017) AIR SC 4417. Hence, the application filed under Section 13-B(2) of the Act is allowed. 10. We have perused the terms and conditions which have been extracted above and we note that the same are lawful and there is no legal impediment as to why the marriage between the parties cannot be dissolved by a decree of mutual consent. In the circumstances, the petition filed under Section 13-B(1) of the Act is allowed in accordance with the terms and conditions arrived at between the parties referred to above, and the marriage between the parties is dissolved by a decree of divorce by mutual consent.