Sri B.M. Santosh vs Smt Archana
2021 Latest Caselaw 5725 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 08TH DAY OF DECEMBER, 2021

                     PRESENT

       THE HON'BLE MR. JUSTICE B. VEERAPPA

                        AND

   THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

MISCELLANEOUS FIRST APPEAL No.1328/2021 (FC)


BETWEEN:

SRI B.M SANTOSH
S/O B.C MALLESHAPPA
AGED ABOUT 36 YEARS
R/AT NO.154, 7TH MAIN
12TH CROSS, 3RD BLOCK
T.R NAGAR, BENGALURU - 560028.
                                     ...APPELLANT
(BY SRI V.S BIJU, ADVOCATE)

AND:

SMT. ARCHANA
W/O B.M SANTOSH
D/O LATE ARAVIND N
AGED ABOUT 34 YEARS
R/AT NO. 4, "SRI ARAVINDALAYA"
SUMUKA APARTMENT
6TH MAIN, 9TH CROSS
3RD BLOCK, T.R NAGAR
BENGALURU - 560028.
                               -2-



                                           ...RESPONDENT
(BY SRI JEEVAN K, ADVOCATE)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 19(1) OF THE FAMILY COURTS ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DEATED DATED 26.02.2020 PASSED IN MC NO.923/2016
ON THE FILE OF THE III ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, BENGALURU, DISMISSING THE PETITION
FILED UNDER SECTION 13(1)(I-A) AND (I-B) OF THE
HINDU MARIAGE ACT.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ORDERS THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:

                      JUDGMENT

The husband filed the present miscellaneous first

appeal against the impugned judgment and decree dated

26/02/2020, passed in M.C.No.923/2016, by the III

Additional Principle Judge, Family Court at Bengaluru,

dismissing the petition filed under Section 13(1)(ia) and

(ib) of the Hindu Marriage Act, 1955 (hereinafter referred

to as "the Act" for short).

2. Sri V.S.Biju, learned counsel for the appellant

and Sri Jeevan K., learned counsel for the respondent

submit that both the parties have agreed for mutual

consent divorce under Section 13B(1) of the Act duly

signed by both the parties who are present before the

Court.

3. The respondent has also filed an application

(I.A.No.2/2021) of the said Act to waive the requirement

of cooling off period of six months stating that the

marriage between the parties was solemnized on

16/03/2009 and out of their wedlock, a son by name

Samarth was born to them on 09/08/2013 and that they

have been residing separately for more than eight years on

account of irreconcilable differences as their marriage is

irretrievably broken down and they are unable to continue

the matrimonial life together due to incompatibility

between them. Therefore, in order to solve the

matrimonial dispute between the parties, they have agreed

to dissolve their marriage through divorce by mutual

consent. Therefore, the application is filed seeking to

waive off the six months as the statutory period of six

months as specified in Section 13B(2) of the Act is already

over after their separation and before the filing of the

petition itself they were residing separately for more than

eight years.

4. There has been no reconciliation between the

parties and hence, no co-habitation. Therefore, they have

filed the petition for dissolution of marriage by a decree of

divorce by mutual consent on their free volition without

there being any coercion or undue influence from any side.

5. In the circumstances, we have taken on record

the petition filed under Section 13B(1) of the Act and

paragraph No.5 of the petition reads as under:

"5) Pursuant to discussions between the parties, they have out of their own volition and free will agreed as under:

a. The marriage solemnized between the parties as per rights and customs of Hindu community at Sri. Venkataramana Kalyana Bhavan on 16/3/2009 be dissolved by a decree of divorce by mutual consent, consequently MFA.No.1328/2021 be allowed as per the terms of the instant Petition and the Order dated 26/2/2020 in M.C.No.923/2016 under S.13(1)(1-b) of the Hindu Marriage Act, 1955 be set aside.

b. It is agreed between the parties that petitioner No.1 would be paying a sum of Rs.9 lakhs (Rupees Nine Lakhs only) as permanent alimony to Petitioner No.2. The said amount will be paid to he 2nd petitioner by way of demand draft at the time of reporting settlement before this court.

c. Both the parties herewith univocally agree that hereafter no claim, demand or right in any manner shall be put forth and the parties state that there are no dues whatsoever payable to one another in any form. Neither of the parties are putting forth any claim for maintenance or any other claim or share in the property of each other. Both the parties individually and categorically state that they shall not put forth any claim for maintenance or any other claim whatsoever against the other party either or any other claim whatsoever against the other party either during the pendency of this proceedings or in the future;

d. The Petitioner No.2 herewith confirm that she would not put forth any claims for maintenance or any other claim in the name of the child Master Samarth. e. Both the parties agree that claims directly or indirectly put forth till date against the other are settled in view of this settlement arrived at by their mutual decision with full and final satisfaction of both the parties and there are no claims towards past and future maintenance/compensation/damages etc. by both the parties towards each other. Both parties

have no claims whatsoever with respect to any monies/jewellery/documents etc. of each other; f. Both the parties agree that they will not act against he other nor against the covenants or settlement entered into herein in connection with the matrimonial life against each other or their families; g. Both the parties agree to put behind them their experiences connected with or arising out of their marriage. Accordingly, both parties agree to hereinafter refrain from making (directly or indirectly) any disparaging/defamatory/denigrating statements either oral or written or in any form against the other party, their family or friends."

6. It is further stated that the parties have agreed

that the said settlement is lawful, full, final and complete

settlement of all the inter se claims operating and binding

from the date the parties signed the present petition in

the presence of their respective counsel.

7. When queried, both the parties confirmed that

the consent divorce petition is filed voluntarily as they

could not reconcile and continue the marital life. The

submission is placed on record.

8. In paragraph No.5(b) of the consent divorce

petition it is agreed between the parties that the

appellant/B.M.Santosh would pay a sum of Rs.9,00,000/-

(Rupees nine lakh only) by way of demand draft bearing

No.080206 dated 08/11/2021, drawn on Bank of Baroda

as permanent alimony.

9. Respondent/Mrs. Archana, who is residing with

her minor child 'Samarth' fairly submitted that out of

Rs.9,00,000/-, a sum of Rs.5,00,000/- (Rupees five lakh

only) would be deposited in the name of the minor child in

any nationalized bank till he attains the age of majority

and she also requested that the said submission may be

recorded. Accordingly, it is recorded in the open Court.

10. In order to protect the interest of the child, we

are of the considered opinion that the said sum of

Rs.5,00,000/- shall be deposited in the name of the minor

child 'Samarth' who is aged about 8 years, represented by

his mother natural guardian, respondent herein in any

nationalized bank till the child attains the age of majority

and he is entitled to receive the amount after he attains

the age of majority. The remaining amount could be

utilized by the respondent/wife.

11. In view of the above, we pass the following:

ORDER

(i) The appeal is disposed of in terms of the

mutual consent petition.

(ii) The impugned judgment and decree dated

26/02/220, passed by the trial Court in

M.C.No.923/2016 dismissing the petition filed

by the husband under the provisions of Section

13(1)(ia) and (b) is hereby set aside.

(iii) Decree of divorce is granted by mutual consent

in terms of Section 13B(1) of the Act.

(iv) The marriage solemnized between the parties

on 16/03/2009 is hereby dissolved by mutual

consent in terms of the compromise petition

stated supra.

(v) The terms of the compromise petition filed

under Section 13B(1) of the Act shall be read

as part and parcel of the decree.

(vi) Office is directed to draw up a decree

accordingly.

(vii) The respondent/wife is directed to deposit a

sum of Rs.5,00,000/- (Rupees five lakh only)

in the name of the minor child Samarth in any

nationalized bank within a period of one week

from the date of receipt of this order and on

deposit of the same, the receipt shall be

produced before the registry.

Sd/-

JUDGE

Sd/-

JUDGE

S*