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2021 DIGILAW 189 (KAR)

Jagannath Puttaswamy S/o. Gowdagere Rangaiah Puttaswammy v. Rashmi Rani D/o. Janardhana Swamy

2021-01-29

B.V.NAGARATHNA, M.G.UMA

body2021
JUDGMENT : This appeal is filed by the appellant - husband assailing the judgment and decree passed in M.C.No.4/2016 dated 02/04/2019 by the I Addl. Prl. Judge, Family Court at Mysuru. The said petition was filed by the husband under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 (hereinafter, referred to as "the Act", for the sake of brevity). By the said judgment and decree, the petition filed by the husband was dismissed. Hence, this appeal. 2. During the pendency of this appeal, the parties have filed a petition under Section 13B(1) of the Act, seeking dissolution of marriage by a decree of divorce by mutual consent. An application is also filed under Section 13B(2) of the Act, seeking waiver of six months period stipulated under Section 13B(2) of the Act. 3. We have heard learned counsel for respective parties, who are also present before this Court. 4. Learned counsel for respective parties submitted that during the pendency of this appeal, the parties have decided to seek dissolution of their marriage by a decree of divorce by mutual consent and they have filed a petition under Section 13B(1) of the Act, as well as an application under Section 13B(2) of the Act, the same may be allowed and the impugned judgment and decree may be set aside. They submitted that the parties are present before this Court and they have no objection for the impugned judgment and decree to be set aside. 5. The parties are present before this Court and they have been identified by their respective counsel. 6. When queried by this Court, the parties stated that they have indeed agreed that their marriage be dissolved by a decree of divorce by mutual consent. They have submitted that they have come to such an agreement on their own 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 7. Learned counsel for appellant submitted that a sum of Rs.17,00,000/-has been paid towards permanent alimony to the respondent by Demand Draft bearing No.086376 drawn on State Bank of India, Chandra Layout Branch, Bengaluru, dated 25/01/2021, in favour of the respondent. 8. Memorandum of settlement arrived at between the parties under Section 13B(1) of the Act is taken on record. Learned counsel for appellant submitted that a sum of Rs.17,00,000/-has been paid towards permanent alimony to the respondent by Demand Draft bearing No.086376 drawn on State Bank of India, Chandra Layout Branch, Bengaluru, dated 25/01/2021, in favour of the respondent. 8. Memorandum of settlement arrived at between the parties under Section 13B(1) of the Act is taken on record. It is noted that to same is signed by the respective parties and their advocates. It is supported by a joint affidavit. The terms of settlement read as under:- "MEMORANDUM OF APPLICATION UNDER SECTION 13(2)(B) OF THE HINDU MARRIAGE ACT, 1955 The appellant and respondent above named submits as follows:- 1. That the marriage of the appellant with the respondent was solemnized on 03.03.2002 as per Hindu Customs at Raghavendra Kalyana Mantapa at Mysore. Thereafter out of wed lock they got son by name Chiranth Born on 09-07-2004 and daughter by name Akansha was born on 13-07-2007. 2. That thereafter the Appellant filed divorce petition M.C.No.4/2016 alleging many acts against the Respondent seeking dissolution of marriage solemnized between the appellant and respondent dated 03.03.2002 under section 13(1) (i-a) & (i-b) of the Hindu Marriage Act before the First Addl. Prl. Judge Family Court at Mysore. 3. That the petition filed by the Appellant for divorce came to be dismissed as per the judgment decree dated 02.04.2019, for dissolving the marriage solemnized between the appellant and respondent herein. 4. That the Appellant being aggrieved by the Judgment and decree dt.02.04.2019 made in M.C.No.4/2016 on the file of the 1st Addl. Prl. Judge Family Court at Mysore, preferred the above appeal. This Hon'ble Court ordered notice to the respondent as per order dt.27-09-2019. 5. That after service of notice, the parties at the intervention of well-wishers and family friends amicably settled the matter. 6. That as per the settlement, the appellant has paid a sum of Rs.17,00,000/-by way of DD bearing No.086376 drawn on SBI Bank, Chandra layout Branch, Bengaluru, dt.25/1/2021 to the respondent towards permanent alimony and maintenance. The respondent and appellant without any undue influence amicably settled the matter for the above said amount. 7. That apart the appellant under taking to pay the amount to the children only as per the orders passed by the family court at Mysore in Crl.Mis.No.633/2018 and Crl.Mis.No.712/2019 towards education and miscellaneous expenses. The respondent and appellant without any undue influence amicably settled the matter for the above said amount. 7. That apart the appellant under taking to pay the amount to the children only as per the orders passed by the family court at Mysore in Crl.Mis.No.633/2018 and Crl.Mis.No.712/2019 towards education and miscellaneous expenses. Further the respondent herself is not claiming any maintenance as per the order made in Crl.Mis.No.633/2018 and Crl.Mis.No.712/2019. Since, the Petitioner is paying permanent alimony of Rs.17,00,000/-. 8. That the respondent submits that she is not having any claim of whatsoever against the appellant and further, the respondent further submits that she not claiming any right over the property of the appellant nor her in laws by the Respondent only. 9. That in view of the above said circumstances; the respondent has no objection to set aside the order passed by the Judgment and decree dt.02.04.2019 made in M.C.No.4/2016 on the file of the 1st Addl. Prl. Judge Family Court at Mysore and to grant decree of divorce. 10. That the parties are living separately for the last more than 9 years and there is no possibility of re -union. 11. The contents of this compromise petition have been read over by both the parties and after understanding the contents, they have singed the compromise petition. Wherefore, the appellant and respondent respectfully prays that this Hon'ble Court may be pleased to waive of the 6 months period and relax 6 months period for considering the petition filed under section 13(B) of the Hindu Marriage Act, for dissolution of marriage dt.03-03-2002 held at Raghavendra Kalyana Mantapa, Mysuru, and allow the petition filed under Section 13(B) of the Hindu Marriage Act, in the interest of justice and equity." 9. The application filed under Section 13B(2) of the Act is also perused. In the circumstances, we find that the application filed under Section 13B(2) is to be allowed as parties have not resided together since the year 2016 and there is no possibility of cohabitation between the parties. Hence, the said application is allowed on the basis of the recent judgment of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [ (2017)8 SCC 746 ]. Hence, the said application is allowed on the basis of the recent judgment of the Hon'ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur [ (2017)8 SCC 746 ]. Since the parties have lived apart, 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. 10. The parties have also stated that there is no reconciliation between them and therefore, they have resolved that their marriage may be dissolved by a decree of divorce by mutual consent. In the instant case, it is noted that M.C.No.4/2016 was filed in the year 2016 and since then, the parties have not resided together. In the circumstances, 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. 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 residing separately for more than a year. 12. We have perused the terms of the settlement. Having perused the terms of the settlement arrived at between the parties, we find that they are lawful and there is no impediment to accept the same. Hence, the same is accepted by us. 13. The marriage solemnized between the parties on 03/03/2002 at Raghavendra Kalyana Mantapa, Mysuru, is dissolved by a decree of mutual consent. In the result, the appeal is disposed of. The judgment and decree passed by the Family Court at Mysuru, in M.C.No.4/2016 is substituted by this judgment. Registry to draw up a decree accordingly. In view of disposal of the appeal, I.A.No.2/2021 stands disposed.