Karnataka High Court

Smt.Sapna W/O Naresh Somanache vs Shri.Naresh Nakul Somanache on 8 December, 2021

Bench: S.Sunil Dutt Yadav, S Rachaiah

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        IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

   DATED THIS THE 8TH DAY OF DECEMBER, 2021

                      PRESENT
  THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
                        AND
       THE HON'BLE MR.JUSTICE S. RACHAIAH
            MFA No.100636 OF 2016 (FC)

BETWEEN:

SMT. SAPNA W/O NARESH SOMANACHE
AGE:36 YEARS, OCC:PRIVATE SERVICE,
R/O 1ST MAIN, 2ND CROSS, SADASHIV NAGAR,
BELAGAVI, TALUKA & DIST:BELAGAVI.
                                           ....APPELLANT
(BY SRI. DEEPAK S KULKARNI, ADVOCATE)

AND:

SHRI. NARESH NAKUL SOMANACHE
AGE:51 YEARS, OCC:BUSINESS,
R/O 4TH CROSS, VIDYA NAGAR,
ANGOL, BELAGAVI, TALUKA & DIST:BELAGAVI.
                                      ....RESPONDENT
(BY SRI. RAM P GHORPADE, ADVOCATE)

     THIS APPEAL IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, 1984 PRAYING TO SET-ASIDE THE
JUDGMENT AND DECREE DATED 1.12.2015 PASSED BY THE
JUDGE, FAMILY COURT, BELGAUM IN MC NO.308/2014 MAY
KINDLY BE SET-ASIDE IN THE INTEREST OF JUSTICE AND
EQUITY AND ANY OTHER EQUITABLE RELIEF/S THE
APPELLANT IS FOUND ENTITLE TO UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE, MAY KINDLY BE GRANTED.
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      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, S.SUNIL DUTT YADAV J., DELIVERED THE FOLLOWING:

                             JUDGMENT

Present appeal is filed against the dismissal of the

petition filed under Section 13(1)(i-a)(i-b) of the Hindu

Marriage Act, 1955, wherein the appellant had sought for

dissolution of the matrimonial relationship with the

respondent, which came to be dismissed. As against the

said order of the Family Court, present appeal has been

filed.

2. During the pendency of the present

proceedings, upon suggestion of the Court to the parties

who were present, the matter is resolved. Today, both

parties along with their counsel are present before the

Court and they submit that they have amicably resolved

their dispute and to that effect they have filed a petition

under Section 13-B(1) of the Hindu Marriage Act, 1955

(for short, 'Act') and sought for dissolution of the

matrimonial relationship by dissolving marriage solemnized

on 19.4.1998 at Danamma Mangal Karyalaya, Shahapur,

Taluk and District of Belagavi and pass decree of divorce

on mutual consent. The contents of the said petition reads

as under:

"1. The appellant is the legally wedded wife of the respondent. The marriage between the appellant and respondent was performed at Danamma Mangal Karyala, Shahapur, Belagavi Taluk and District, as per Hindu Customary rites and ceremonies on 19th April, 1998. After marriage the appellant had joined the company of the respondent and led happy married life for few years and out of the said wedlock one son Gagan was born in the year 2003.

2. Some unknown persons killed the Appellant and the Respondent's only son Gagan in the year-2010. For this heinous offence a complaint has been lodged at Tilakwadi police station, Belagavi under P.S. Crime No- 194/2010 which is still pending for adjudication. The Appellant and the Respondent undertake to co operate the police in investigation of the said offence.

3. Since the month of November - 2010 both the Appellant and the Respondent have been residing separately and there is no cohabitation or any type of relation between the Appellant and Respondent.

Thereafter, the appellant has filed the petition for Divorce before the Judge, Family Court, Belagavi in

M.C. No 308/2014 on the grounds of cruelty and desertion. But the Hon'ble Judge, Family Court, Belagavi dismissed the said M.C. No 308/2014 by the Judgment and Decree, dated: 01-12-2015.

4. The Appellant is being aggrieved, by the Judgment and Decree, dated: 01-12-2015, passed by the Hon'ble Judge, Family Court, Belagavi in M.C.No-308/2014, has preferred the present appeal i.e. M.F.A. No- 100636/2016 (FC) before this Hon'ble Court.

5. That since beginning the elders of the family of the Appellant and the Respondent, their relatives, friends & experts have tried their best, to settle the matter between the Appellant and the Respondent. But those efforts have been totally failed. During the pendency of the above said cases also the efforts have been made to settle the matter between the Appellant and the Respondent. Now both the Appellant and the Respondent have realized that they cannot lead their married life together since there is no mutual understanding, there have been lots of difference of opinions between both the Appellant and the Respondent, which made totally impossible for them to lead their married life together. Therefore, both the Appellant and the Respondent have decided to lead their life separately & independently according to their own wish and will. Therefore both the Petitioners have

constrained to file the present petition for Divorce by mutual consent.

6. That due to the frequent quarrels, difference of opinion, misunderstanding and strained relations between both the Appellant and the Respondent, they have been residing separately and leading their life separately. Both the Appellant and the Respondent have been residing separately since more than 11 years i.e. since the month of November - 2010.

7. That both the Appellant and the Respondent have come to clear and definite conclusion that their marital relationship has reached an irretrievable point and it is not possible for them to continue to live as husband and wife any more. The marriage has irretrievably broken down and there are no hopes of reunion.

8. The only son born out of this wed-lock/marriage between the Appellant and the Respondent i.e. "Gagan" was murdered in the year-2010. Therefore, at present the Appellant and the Respondent have no any issues/children. Both the Appellant and the Respondent wants to lead their life separately, independently and afresh & both the Appellant and Respondent determined to take divorce. Therefore, both the Appellant and the Respondent constrained to file this petition for consent divorce.

9. There is no force, fraud, undue influence, misrepresentation and coercion in filing the present petition for divorce by mutual consent. Both the Appellant and the Respondent voluntarily decided to lead their life independently and afresh, by getting the Divorce by mutual consent, therefore both the Appellant and the Respondent have filed this petition.

10. The Appellant has agreed that she will not claim present or future maintenance from the Respondent and she also agreed that she will not claim any type of share in the movable and immovable properties of the Respondent. Similarly, the Respondent has agreed that he will not claim any type of share in the movable and immovable properties of the Appellant and he will not claim any type of present or future maintenance from the Appellant.

11. The Appellant and the Respondent agreed that they will not give any type of physical and mental harassment to each other and to their family members and both should not file false case.

12. The Appellant agreed that she will not make any type of interference, harassment in the Respondent's life. Similarly, the Respondent agreed that he will not make any type of interference, harassment in the Appellant's life.

13. Both the Appellant and Respondent agreed that they will lead their life independently without making any type of accusation, allegations, quarrels."

3. Parties have filed their affidavits reiterating the

averments made in the petition and they have also filed an

application under Section 13(B)(2) of the Act seeking

waiver of waiting period. Insofar as application seeking

waiver of waiting period, taking note that the present

proceedings are pending since 2016 and in the light of the

decision of the Apex Court in the case of Amardeep

Singh Vs. Harveen Kaur (2017) 8 SCC 746, the

grounds are made out for allowing the application.

Accordingly, the said application is allowed.

4. Upon enquiry, the parties submit that they do

not intend to have any claim with each other in the light of