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2020 DIGILAW 644 (KAR)

K. B. Hariprasad v. Pushpavathi

2020-03-05

B.V.NAGARATHNA, PRADEEP SINGH YERUR

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JUDGMENT B.V. Nagarathna, J. - This appeal is listed for Admission. 2. The appellant is the husband while respondent is the wife. The appellant - husband had filed a petition under Section 13 (1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred as the Act for the sake of brevity) in MC No. 22/2013 on the file of the Senior Civil Judge at Madikeri dated 2nd January 2016 seeking dissolution of the marriage with the respondent - wife by a decree of divorce. The said petition came to be dismissed. Being aggrieved, the husband has preferred this appeal. 3. The learned Counsel for the respective parties submit that during the pendency of this appeal the parties have negotiated a settlement and have decided that the marriage between them may be dissolved by way of a decree of divorce on mutual consent. The petition under Section 13-B(1) of the Act has been filed and terms are set out therein. It is supported by a joint affidavit. They further submitted that the stipulation under Section 13-B(2) of the Act are complied with as the parties are residing separately from the year 2013 and there is no possibility of reconciliation between them and it is not possible for the parties to co-habit together. Therefore, they have filed the petition seeking dissolution of the marriage by a decree of divorce by mutual consent. The said petition is supported by the affidavit of the parties. The learned Counsel for respective parties further submitted that they have filed an application under Section 13-B (2) of the Act seeking waiver of six months period stipulated under sub-Section (2) of Section 13-B of the Act, having regard to the dictum of the Honble Supreme Court in the case of Amardeep Singh v. Harveen Kaur reported in (2017) 8 SCC 746 . They contended that the said application may be allowed and the appeal may be disposed in terms of the petition filed by the parties under Section 13-B(1) of the Act. 4. The parties are present before the Court. They have been identified by their respective counsel. 5. When queried by this Court, it is stated that they have agreed to seek dissolution of their marriage by a decree of divorce by mutual consent on certain conditions. 4. The parties are present before the Court. They have been identified by their respective counsel. 5. When queried by this Court, it is stated that they have agreed to seek dissolution of their marriage by a decree of divorce by mutual consent on certain conditions. Further, they stated that they have indeed arrived at a settlement on their own volition, without there being any collusion or undue influence from any quarter. Hence, they stated that their application and petition may be allowed. 6. In the circumstances, the petition filed under Section 13-B (1) of the Act is taken on record. Perused. It is seen that it is signed by both the parties and their respective Advocates. It is accompanied by the Joint Verifying Affidavit. The petition reads as under: 'MEMORANDUM OF PETITION FOR DIVORCE BY MUTUAL CONSENT UNDER SECTION 13-B (1) OF THE HINDU MARRIAGE ACT, 1955: The Appellant and Respondent above named, in the above case begs to submit as follows:- 1. The Appellant married with the Respondent herein and marriage was solemnized as per Hindu customs and rites on 1/3/2012 at Kodava Samaja, Somwarpet as per Gowda Customs. 2. It is further submitted by the Appellant and Respondent herein, though their marriage was solemnized on 1/3/2012, they could not able to live together in matrimonial home. Therefore, the Appellant is living separately in his parents house and the Respondent is living separately in her parents house. Thus, the Appellant as well as the Respondent are not living together as a husband and wife since more than 8 years. Hence, there is a long desertion between the parties. 3. It is further submitted by this Appellant that, the Appellant has filed the Petition under section 13 (1) III of the Hindu Marriage Act of 1955 for grant of decree of divorce by dissolving their marriage held on 1/3/2012 at Kodava Samaja, Somwarpet, before the Senior Civil Judge Court at Madikeri in M.C. No. 22/2013 and the said case came to be dismissed as per the orders dated 02/01/2016. Against the said dismissal order, the Appellant has filed this Miscellaneous First Appeal before this Honble Court. 4. It is numbly submitted by both the parties that, the dispute arose between the parties due to the temperamental difference, incompatibility and also due to other reasons and as such the marriage could not be workable. Against the said dismissal order, the Appellant has filed this Miscellaneous First Appeal before this Honble Court. 4. It is numbly submitted by both the parties that, the dispute arose between the parties due to the temperamental difference, incompatibility and also due to other reasons and as such the marriage could not be workable. Several efforts were made by the well wishers, relatives and common friends, but parties would not reunite and it is clear that there is no possibility of living together as husband and wife. There is no chance of reconciliation of the marriage between the parties or resumption of normal marital relationship in future. Therefore, both the parties mutually agreed to that their marriage should be dissolved by mutual consent. 5. It is humbly submitted by this Appellant and Respondent that during pendency of this appeal the matter was referred to the Adalath/Mediation Centre of Madikeri for the purpose of resolving their differences. But before the Adalath/Mediation Centre the Appellant as well as Respondent along with her parents were tried to settle the matter. But due to the small differences, the matter was not resolved/settled before the Adalath/Mediation Centre at Madikeri. However, the Appellant and Respondent herein along with the father of the Respondent amicably settled the matter mutually, without any force and pressure, coercion etc., but both the parties voluntarily settled the matter. Accordingly both the parties are filing this Joint Petition. 6. It is humbly submitted by the parties of this case that, both the parties have agreed to go for dissolution of their marriage held at 1/3/2012, Kodava Samaja, Somvarpet. In view of the settlement arrived between the parties, the Appellant herein has paid a sum of Rs. 2,70,000/- by way of a DD No. 738044 of Canara Bank, Kudigea, Coorg and cash to the Respondent as a full and final settlement amount towards permanent alimony and the Respondent herein has duly received the said amount with due acknowledgement as a permanent alimony and further the Respondent hereby declares that she has accepted the said amount as a permanent alimony and she will not claim any further alimony/maintenance or any kind of claims against the Appellant. 7. It is humbly submitted that both the parties have agreed that the custody of the child will be remains with the Respondent only. 8. 7. It is humbly submitted that both the parties have agreed that the custody of the child will be remains with the Respondent only. 8. It is humbly submitted by both the parties that, there have not been any previous proceedings with regard to the marriage by or on behalf of the parties. 9. It is humbly submitted by both the parties that, the Appellant and Respondents have voluntarily and mutually agreed that their marriage be dissolved by mutual consent and the both the parties have not been obtained any force, fraud or undue influence. 10. It is humbly submitted by both the parties that, there is no collusion between the parties in filing the present petition. 11. It is humbly submitted by both the parties that, there is no other legal impediment to grant the relief sought by the Appellant and Respondent by this Honble Court. 12. The respondent is hereby withdrawing all the allegations alleged against the Appellant. Similarly, The Appellant is hereby withdrawing all the allegations alleged against the Respondent. PRAYER WHEREFORE, both the Appellant as well as the Respondent herein most respectfully prayed that his Honble Court may kindly be pleased to allow the appeal by granting the decree of divorce by dissolving their marriage held on 1/3/2012 at Kodava Samaja, Somwarpet, Coorg District between the Appellant and Respondent on the basis of mutual consent as provided under the law and both the parties are not claiming any cost/relief against each other. Date: 05/03/2020 Place: Bangalore Signature of Appellant Advocate for Appellant Signature of Respondent Advocate for Respondent' 7. On going through the petition we find that owing to temperamental differences and incompatibility, the parties are unable to reconcile their differences and cohabit together and that they have been living separately since 2013. That the male child born out of the wedlock, who is aged about 12 years, shall be in the custody of the respondent - wife. That the appellant - husband would pay a sum of Rs. 2,70,000/- (Rupees two lakhs seventy thousand only) to the respondent-wife. In furtherance of the same, a demand draft bearing No. 738044 dated 29.02.2020 drawn on Canara Bank, Kudige Branch, Coorg for a sum of Rs. 2,00,000/- (Rupees two lakhs only) and a sum of Rs. 70,000/- (Rupees seventy thousand only) by way of cash, in favour of the wife is being handed over to her. In furtherance of the same, a demand draft bearing No. 738044 dated 29.02.2020 drawn on Canara Bank, Kudige Branch, Coorg for a sum of Rs. 2,00,000/- (Rupees two lakhs only) and a sum of Rs. 70,000/- (Rupees seventy thousand only) by way of cash, in favour of the wife is being handed over to her. The learned Counsel for appellant has handed over the same to the learned Counsel for the respondent, who in turn has handed over the same to the wife, who acknowledges receipt of the same. 8. We have perused the application filed under Section 13-B(2) of the Act. The same is supported by a Joint Memo of the parties. We find that the parties have agreed to seek dissolution of their marriage by mutual consent on the aforesaid terms and conditions. Further, it is stated that owing to temperamental differences and incompatibility, the parties are unable to reconcile their differences and cohabit together and that they have been living separately since the year 2013. 9. Further, in view of the separation between the parties since 2013 and having regard to the fact that the parties have agreed to seek dissolution of their marriage by mutual consent and on not being able to cohabit together, we find that the parties have made out a case. In the circumstances, placing reliance on the dictum of the Honble Supreme Court in the case of Amardeep Singh v. Harveen Kaur referred to above, we allow the application filed under Section 13-B(1) of the Act. 10. We have also perused the terms and conditions extracted above for the purpose of seeking divorce by mutual consent and we have perused the petition filed under Section 13-B(1) of the Act. We find that they are lawful. Further, we do not find any other impediment to allow the petition filed under Section 13-B(1) of the Act. 11. In the circumstances, the petition filed under Section 13-B(1) of the Act is liable to be allowed and is allowed. The marriage between the parties solemnized on 01.03.2012 at Kodava Samaj, Somvarpet, is dissolved by a decree of divorce by mutual consent as per the aforesaid terms. Office to draw decree accordingly.