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2020 DIGILAW 1988 (KAR)

A. Manjesh v. G. N. Aruna

2020-10-05

B.V.NAGARATHNA, N.S.SANJAY GOWDA

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JUDGMENT B V Nagarathna, J. - This appeal is listed for final hearing. 2. Appellant, is the husband, who had filed a petition under Section 13(1)(ib) of the Act, seeking dissolution of his marriage with the respondent/wife, which had taken place on 22/04/2005. By judgment and decree dated 01/02/2013, the petition filed by the husband in M.C.No.476/2011 was dismissed by the Court of Additional Principal Judge, Family Court IV, Bengaluru. Being aggrieved, husband has preferred this appeal. 3. Learned counsel for the respective parties submitted in unison that this appeal was referred to the Bangalore Mediation Centre ("Centre" for short) and the parties appeared before the Centre and they have arrived at a settlement of their dispute, which is recorded in a Memorandum of Settlement under Section 89 of the CPC read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules 2005. Learned counsel for the respective parties submitted that the said settlement may be accepted by this Court and the marriage between the parties may be dissolved by considering the settlement under Section 13B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act", for the sake of convenience). 4. As already noted above, during the pendency of this appeal, the parties have arrived at a settlement. Hence, learned counsel for the respective parties submitted that this appeal may be disposed of in terms of the settlement arrived at between them before the Centre. 5. Learned counsel for the appellant, Sri Ismail M.Musba for M/s.Chouta Associates and learned counsel for the respondent, Sri V.R.Balaraj as well as parties have appeared through video conference. The parties have been identified by their respective counsel. 6. When queried by this Court, the parties stated that they have indeed arrived at a settlement before the Centre and they have agreed that their marriage be dissolved by a decree of divorce by mutual consent. That the memorandum of settlement arrived at between the parties may be treated as one being under Section 13B(1) of the Act. That under the said settlement on dissolution of marriage between the parties by mutual consent, a sum of Rs.75.00 lakh is being paid by demand draft bearing No.004194, dated 01/10/2020, drawn on Axis Bank, Hegdenagar Branch, Bengaluru, by the appellant to respondent. They further stated that a sum of Rs.1.25 crore shall be paid by the appellant to the daughter, Kum. They further stated that a sum of Rs.1.25 crore shall be paid by the appellant to the daughter, Kum. Poorvi, in another proceeding which has been filed by the daughter seeking partition. That on such payment being made, the respondent/wife has no further claim whatsoever against the appellant/husband. 7. They further stated that they have arrived at a settlement on their free volition without there being any coercion or undue influence from any side. They also stated that they would abide by the settlement and the appeal may be disposed of in terms of the settlement arrived at between them. The memorandum of settlement referred to above is taken on record. It is noted that it is signed by the respective parties and their advocates. The same reads as under: "MEMORANDUM OF SETTLEMENT UNDER SECTION . 89 OF CPC READ WITH RULES 24 AND 25 OF THE KARNATAKA CIVIL PROCEDURE (MEDIATION) RULES, 2005. I. The aforesaid appeal was referred to mediation for resolving the dispute between the parties. In the course of Video Conference Mediation, the parties have resolved their dispute and have agreed to the following terms and conditions: 1. WHEREIN the marriage of the parties herein was solemnized on 22-04-2005 at KNS Convention Hall, Bellary Road, Bangalore, according to Hindu customs and traditions. After the marriage, the Respondent/wife stayed at home in the matrimonial house for about 1 year 3 months. That from the wedlock a female child was born to them on 9-05-2006, name as Poorvi, who is now aged about 14 years. 2. WHEREIN the parties had certain differences between them and thereby could not live together and have been living separately since 2006. Despite several attempts by elders and well-wishers and after number of panchayath sittings, the parties were unable to live together. 3. Hence the Appellant/husband herein had filed a petition under Section 9 of the Hindu Marriage Act, 1955 numbered as M.C.No.1593/2007 before the Honble IV Addl. Family Court at Bangalore seeking restitution of conjugal rights. 4. Despite several attempts by elders and well-wishers and after number of panchayath sittings, the parties were unable to live together. 3. Hence the Appellant/husband herein had filed a petition under Section 9 of the Hindu Marriage Act, 1955 numbered as M.C.No.1593/2007 before the Honble IV Addl. Family Court at Bangalore seeking restitution of conjugal rights. 4. During the pendency of the case for restitution of conjugal rights, as the Respondent/wife was not interested in joining the company of the Appellant/husband, the Appellant/husband withdrew the petition filed under Section 9 of the Hindu Marriage Act and filed a petition for divorce under Section 13(1)(ib) of the Hindu Marriage Act numbered as M.C.No.476/2011 before the Family Court of the IV Additional Principal Judge, Family Court, Bangalore. 5. Meanwhile the Respondent/wife filed a Criminal Miscellaneous petition numbered as Criminal Misc.No.48/2008 under Section 125 CrPC seeking maintenance before the Court of the Civil Judge & JMFC, Doddaballapur. That the learned Magistrate was pleased to pass an interim order dated 22.03.2013 directing the Appellant/husband to pay a sum of Rs.20,000/- towards monthly maintenance. 6. That against the said order, the Appellant/husband had preferred a Criminal Revision Petition numbered as Criminal Revision Petition No.278/2013 before the Honble High Court of Karnataka. The Honble High Court vide order dated 7.02.2014 was pleased to modify the order and fixed a monthly maintenance of Rs.5,000/- to the Respondent/wife and Rs.7,000/- to the daughter, in all Rs.12,000/- and disposed the petition. 7. The Honble Family Court in M.C.No.476/2011 after recording evidence was pleased to dismiss the petition vide order dated 1-02-2013. 8. Aggrieved by the order of dismissal, the Appellant/husband preferred this appeal ie., MFA 2261/2013 before this Honble High Court of Karnataka. 9. WHEREIN the Respondent/wife as a mother/natural guardian on behalf of her daughter Kum Purvi @Poorvi M had also filed a suit for partition numbered as O.S.No.189/2009 before the Court of IV Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru. The Honble Court after recording evidence was pleased to dismiss the suit for partition vide Judgment and Decree dated 6.09.2018. 10. Being aggrieved by the dismissal of the suit, the Respondent/wife as a mother/natural guardian on behalf of her daughter Kum Purvi @ Poorvi M, has preferred an appeal numbered as R.A.No.141/2018 which is pending before the Honble 9th Addl. District & Sessions Judge, Bengaluru Rural District, at Bengaluru. 11. 10. Being aggrieved by the dismissal of the suit, the Respondent/wife as a mother/natural guardian on behalf of her daughter Kum Purvi @ Poorvi M, has preferred an appeal numbered as R.A.No.141/2018 which is pending before the Honble 9th Addl. District & Sessions Judge, Bengaluru Rural District, at Bengaluru. 11. WHEREIN, the parties during the pendency of the above mentioned cases have amicably resolved the matter with the intervention of wellwishers and the parties have entered into this compromise and accordingly pray that the appeal in MFA No.2261/2013 be allowed and all other cases to be disposed of as per the terms being recorded herein: NOW THIS AGREEMENT WITNESSETH AS FOLLOWS: The parties have agreed to the following terms of compromise: (1) In terms of this Settlement Agreement, the Respondent/Wife shall file a application/memo seeking to withdraw the following petitions in terms of this compromise: (i) Criminal Miscellaneous No.118/2018 pending before the Civil Judge & JMFC, Doddaballapura. (ii) Criminal Miscellaneous No.32/2020 pending before the Civil Judge & JMFC, Doddaballapura (2) The Appellant/husband has agreed to pay a sum of Rs.75,00,000/- (Rupees Seventy five lakhs only) to the Respondent/wife towards her permanent alimony/maintenance and as full and final settlement of all her claims. The respondent/wife has agreed for the same. The Appellant/husband shall pay a sum of Rs.75,00,000/- (Rs Seventy Five Lakhs only) by WAY OF D.D. to the Respondent/wife at the time of disposal of the MFA No.2261/2013 (arising out of MC No.476/2011) pending before the Honble High Court of Karnataka. That the name of the Respondent/Wife in her Aadhar Card bearing No.4459 1962 9937 and Savings bank account bearing No.35902296595 in State Bank of India, Doddaballapur Branch is reflected as Aruna N. (3) The Appellant/husband has agreed to pay Rs.1,25,00,000/- (Rs One Crore Twenty Five Lakhs only) by way of D.D. to his daughter Kum Purvi @ Poorvi M towards development and welfare of her which includes educational, medical, marriage expenses etc., at the time of seeking permission of the Honble 9th Addl. District & Sessions Judge, Bengaluru Rural District at Bengaluru in executing a compromise petition/withdrawal of R.A.No.141/2018 (arisingout of O.S.No.189/2009 dismissed vide order dated 6.09.2018 passed by the Court of IV Addl. District & Sessions Judge, Bengaluru Rural District at Bengaluru in executing a compromise petition/withdrawal of R.A.No.141/2018 (arisingout of O.S.No.189/2009 dismissed vide order dated 6.09.2018 passed by the Court of IV Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru) for the benefit of the child as settled/compromise between the parties (4) A sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) by way of D.D. out of the sum of Rs.1,25,00,000/- (Rs One Crore Twenty Five Lakhs only) shall be paid to the daughter Kum Purvi @ Poorvi M, before the Honble 9th Addl. District & Sessions Judge, Bengaluru Rural District at Bengaluru. The sum of Rs 25,00,000/- (Rupees Twenty Five Lakhs only) shall be invested in a Fixed Deposit in Kum Purvi @ Poorvi Ms Savings account bearing No.39555719151 in State Bank of India, Doddaballapur branch in which her name is reflected as POORVI M until Kum Purvi @ Poorvi M attains majority. (5) That a sum of Rs.1,25,00,000/- (Rs One Crore Twenty Five Lakhs only) as mentioned above will be paid to daughter Kum Purvi @ Poorvi M towards executing the compromise petition/ settlement/withdrawal in R.A.No.141/2018 pending before the Honble 9th Addl. District & Sessions Judge, Bengaluru Rural District at Bengaluru. That the said sum is in respect of any claim towards share of the appellant/fathers property. That out of the said sum, Rs 25,00,000/- (Rs Twenty Five Lakhs only) shall be deposited in an FD account in name of Kum Purvi @ Poorvi M, which shall be operated by the Respondent/wife. Further the Respondent/wife, will be authorized to use the sum of Rs.1,00,00,000/- (Rs One Crore only) to invest in property or such investment as she deems fit on behalf of Kum Purvi @ Poorvi M, as her mother/natural guardian and on her behalf for Kum Purvi @ Poorvi Ms benefit and welfare. (6) The Respondent/wife hereby agrees to have custody of the child Kum Purvi @ Poorvi M and take care of her including education, medical, marriage expenses. The Appellant/husband agrees not to exercise visitation rights with regard to Kum Purvi @ Poorvi M (7) Both parties hereto agree that they shall not interfere in each others personal lives in future. (8) The parties hereto agree to abide by the judgment and decree dated 6.09.2018 passed by the Honble Court in O.S.No.189/2009 and will not challenge the same in future. (8) The parties hereto agree to abide by the judgment and decree dated 6.09.2018 passed by the Honble Court in O.S.No.189/2009 and will not challenge the same in future. (9) The Parties agree that there shall be no claim by one Party against the other or against the family of the other, in future, concerning any property, movable/immovable/Shares/Cash etc. (10) This Settlement made herein shall be the full and final settlement between the Parties herein and no other or further claims of whatsoever nature, other than the amounts mentioned above. (11) Both parties have agreed that they shall not create any situation which may defame or carry out such acts that may lower the reputation of the parties or their family members in the society. (12) Both parties are executing this agreement out of their own free will and without any coercion, undue influence, fraud or misrepresentation from any quarters. (13) Both parties further affirm and undertake that they shall not challenge this compromise in any Petition, appeal, revision, review, application or other legal proceedings, before any Court of Law. (14) WHEREFORE the parties pray that the Honble High Court of Karnataka to allow the appeal in MFA No.2261/2013 and grant a judgment and decree of divorce. II. In view of the aforesaid agreement entered into between the parties, it is prayed that this Honble Court be pleased to dissolve the marriage solemnized on 22-04-2005 between the Appellant and Respondent at KNS Convention Hall, Bellary Road, Bangalore by allowing this MFA and grant other relief as this Honble court deems fit and proper in the circumstances in the interest of justice. III. The parties have to appear before the Honble Court as directed and when the date of appointment given by the Honble Court for passing orders in terms of the agreement. VERIFICATION We, the parties above named do hereby solemnly state and declare that what is contained in paragraphs I to III as read through video conference are true to best of our knowledge, belief and information and assenting to the same, we have signed the scanned copy sent by Bangalore Mediation Centre as it is. sd/- sd/- A Manjesh G.N. Aruna Appellant Respondent Place: Bengaluru Dated: 18.09.2020" 8. sd/- sd/- A Manjesh G.N. Aruna Appellant Respondent Place: Bengaluru Dated: 18.09.2020" 8. Learned counsel for the appellant has handed over the demand draft to learned counsel for the respondent who has in turn handed over the same to the respondent who has acknowledged receipt of the same. 9. We have perused the terms of the settlement and we find that the terms of the settlement do not specifically state that the dissolution of the marriage between the parties is by mutual consent. 10. The parties have also stated that there is no reconciliation between them and hence, they have not cohabited together for more than one year and therefore, they have resolved that their marriage may be dissolved by a decree of divorce by mutual consent. 11. Hence, in substance, the dissolution of marriage is by mutual consent as per Section 13B(1) of the Act. Under the said Section, the parties can file a joint petition seeking dissolution of marriage by mutual consent if there is no chance of reconciliation between them and they have been separated for one year or above. In the instant case, it is noted that M.C.No.476/2011 was filed in the year 2011 and since then, the parties have not resided together. Therefore, in view of this agreement between the parties, we find that the terms of the settlement arrived at between the parties could be accepted and there is no other legal impediment to accept the same. 12. Since the parties have lived apart since the year 2011, we find that this is a fit case where the conditions stipulated in sub-section(2) of Section 13(B) of the Act could be waived having regard to the judgment of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746 . In the circumstances, the marriage between the parties is dissolved by a decree of divorce by mutual consent in terms of Section 13B(1) of the Act and in terms of the settlement arrived at between the parties. 13. Registry to draw up a decree accordingly. In view of disposal of the appeal, I.A.No.1/19 stands disposed.