Karnataka High Court

Sri Mohan S vs Smt Hema M S on 15 November, 2024

Author: K.Somashekar

Bench: K.Somashekar

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                                                        MFA No. 8778 of 2012




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 15TH DAY OF NOVEMBER, 2024

                                            PRESENT

                             THE HON'BLE MR JUSTICE K.SOMASHEKAR

                                               AND

                              THE HON'BLE MR JUSTICE RAJESH RAI K

                      MISCELLANEOUS FIRST APPEAL NO. 8778 OF 2012 (FC)

                      BETWEEN:

                         SRI. MOHAN.S
                         S/O LATE S.R SRINIVAS RAO
                         AGED ABOUT 34 YEARS
                         PERMANENT R/AT NO.286/10,
                         3RD MAIN ROAD, N.R. COLONY,
                         BANGALORE-560 019.
                         ALSO AT
                         C/O CHAYAPATHI VENKATESH
                         R/AT 37/42, 11TH MAIN,
                         MADHUSHREE RESIDENCY
                         PADMANABHANAGAR
Digitally signed by
HARIKRISHNA V            BANGALORE-560 028.
Location: HIGH                                                   ...APPELLANT
COURT OF              (BY SRI. SOMANATH .H, ADVOCATE)
KARNATAKA
                      AND:

                         SMT. HEMA M.S
                         D/O SHESHACHALA
                         AGED ABOUT 32 YEARS
                         R/O-94/1, IX TH MAIN,
                         RAMANUJA ROAD,
                         T.R.NAGAR, BANGALORE-560 028
                         ALSO AT
                         SMT. HEMA.M.S
                         D/O SHESHACHALA,
                         AGED ABOUT 32 YEARS,
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                                            MFA No. 8778 of 2012




    PRESENTLY R/AT NO.286/10,
    3RD MAIN ROAD, N.R COLONY
    BANGALORE-560 019.
                                                    ...RESPONDENT
(BY SRI. H.R MANJUNATH, ADVOCATE)

     THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT
1984, AGAINST THE JUDGMENT AND DECREE DATED
22.6.2012 PASSED IN M.C NO.2564/2007 ON THE FILE OF
PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, DISMISSING
THE PETITION FILED UNDER SEC.13(1)(ia) OF THE HINDU
MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.

     THIS   APPEAL,   COMING   ON   FOR    REPORTING
SETTLEMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:

CORAM:        HON'BLE MR JUSTICE K.SOMASHEKAR
              and
              HON'BLE MR JUSTICE RAJESH RAI K

                        ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)

Learned counsel Sri Somanatha H, for appellant and

learned counsel Sri H.R.Manjunath, for respondent so also the

appellant and respondent are present before the Court

physically.

2. This appeal is directed against the decree of divorce

passed in M.C.No.2564/2007 dated 22.06.2012 by the Court of

Principal Judge, Family Court, Bangalore.

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3. This appeal was referred to the Karnataka Mediation

Centre, Bengaluru to explore the possibilities of settlement of

an issues emerged in between the appellant and the

respondent. Accordingly, both the parties appeared before the

Mediation Centre.

4. The memorandum of Mediation Settlement

Agreement under Section 89 of CPC, 1908 r/w Rules 24 and 25

of the Karnataka Civil Procedure (Mediation) Rules, 2007 reads

as follows:

"MEMORANDUM OF MEDIATION SETTLEMENT AGREEMENT UNDER SECTION 89 OF THE CODE OF CIVIL PROCEDURE, 1908 READ WITH RULES 24 AND 25 OF KARNATAKA CIVIL PROCEDURE (MEDIATION) RULES, 2007

I. The petitioners have filed this joint petition under Section 13-B of the Hindu Marriage Act, for dissolution of their marriage by mutual consent. The Statutory waiting period of six months is waived off vide order dated 05.11.2024.

II. The Petitioners state that their marriage was performed as per the Hindu rites and customs prevailing in their community, on 19.05.2005 at "Lexmikanta Kalyana Mantap", No.42/49, 11th Main road, Padmannabhanagar, Bangalore-560070.

III. Both the petitioners state that they have a son born on 19.02.2006 who is named as Rishi Atreya, who has turned out to be a major, now aged about 18 years 8 months old. Said son has

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been under the care and custody of the second petitioner herein.

IV. The Petitioners submit that since 06.11.2007 they have been living separately. There is no spousal relationship between the two since 06.11.2007.

V. The Petitioners herein most humbly submit that due to differences in their attitudes, approach to various aspects of life, differing life styles, they are unable to live with each other as husband and wife. In spite of sincere efforts, they could not reconcile on issues relating to their strong differences. In spite of repeated attempts by their relatives and well-wishers and several litigation cases filed by the both petitioners, they could not arrive at compromise. Both the Petitioners hereby submit that they have come to a conclusion that due to lack of compatibility between the Petitioners, their marriage dated 19.05.2005 solemnized at "Laxmikanta Kalayana Mantap", No.42/49, 11th main road, Padmanabhanagar, Bangalore-560070 broken has down irretrievably resulting in total lack of companionship between the two. Both the Petitioners on their own have decided that there is no point in continuing their relationship as husband and wife any more.

VI. The aforesaid petition was referred to mediation for resolving the dispute between the parties. During the course of mediation, both the petitioners along with their advocate participated in mediation and the parties have resolved their dispute and have agreed to the following terms and conditions:-

1. The 1st Petitioner herein namely, Sri. S. Mohan has agreed to pay a sum of Rs.

15,00,000/- (Rupees Fifteen Lakhs only) by way of D.D in favour of the 2nd Petitioner Smt. M.S. Hema, towards permanent alimony for herself and

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towards past, present and future maintenance for M.S. Hema. The 2nd Petitioner herein namely, Smt. M.S Hema has no objection to receive the above said sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) towards the permanent alimony for herself and towards past, present and future maintenance for herself.

2. The 1st Petitioner herein has agreed to pay further sum of Rs.7,50,000 (Rupees Seven Lakhs Fifty Thousand only) in favor of Master Rishi Atreya, aged about 18 years 8 months old, son of the 1st Petitioner and 2nd Petitioner by way of D.D drawn in his favor, towards the educational expenses of their son namely, Rishi Atreya till he completes B.Tech. The 2nd petitioner agrees that she or her son will not claim any further amount on any heads at any point of time in future. The 2nd Petitioner herein namely, Smt. M.S Hema has no objections for the said payment being made in the aforesaid manner.

3. The 2nd petitioner herein namely, Smt. M.S.Hema agrees to accept the aforesaid payment of Rs. 15,00,000/- (Rupees Fifteen Lakhs only) in her name by way of D.D bearing. No 839961 dated 07.11.2024 drawn in favor of M.S. Hema, drawn on State Bank of India, NR Colony Branch and Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) In the name of their son, namely, Rishi Atreya by way of D.D bearing No 839962 dated 07.11.2024 drawn in favor of Rishi Atreya, drawn on State Bank of India, NR Colony Branch towards full and final settlement of all her claims against the 1st Petitioner.

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4. The first petitioner herein has agreed to pay the aforesaid sums by way of Demand Draft before the Hon'ble Court, at the time of reporting their mutual settlement and the second petitioner has no objection to receive the same.

5. The second petitioner has agreed to handover the Demand draft drawn in favour of their son, to their son for further needful.

6. Both the parties being well educated agree not to claim any past, present or future maintenance against each other, other than what is stipulated and agreed upon by them.

7. The 2nd Petitioner agrees that their son has attained majority and she would not claim any maintenance or educational expenses for their son, Rishi Atreya from 1st Petitioner In future. The 2nd Petitioner also acknowledges that what is been paid by way of D.D sum of Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) is in full and final settlement of the educational expenses of their son Rishi Atreya.

8. In view of the payment of Rs.15,00,000/- (Rupees Fifteen Lakhs only) agreed to be paid to the 2nd Petitioner by the 1st Petitioner and a sum of Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) being agreed to be paid by the 1st Petitioner to their son Master Rishi Atreya, the 2nd Petitioner along with her son agree not to make any claim pursuant to the orders passed in C.Misc.494/2009, which was filed on the file of I Addnl. Principal Judge, Family Court at Bengaluru.

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9. The 1st petitioner has been making payments towards interim maintenance as per the interim orders passed in Crl.Misc No.494/2009 and also as per the interim order passed in RPFC No.174/2022 and has cleared all the arrears up to date as per the interim order passed in RPFC No.174/2022. In view of the settlement arrived at between the parties as stated above, the dispute between them in respect of Crl. Misc No.494/2009 has been fully settled and the 2nd petitioner confirms that there are no dues to be payable by the 1st petitioner in this regard, the parties hereto have no objection for withdrawal of RPFC No.174/2022.

10. The first petitioner herein Sri. S.Mohan agrees that he had filed R.P.F.C.174/2022 on the file of Hon'ble High Court challenging the orders passed by the Family Court in C.Misc. 494/2009. In view of the settlement arrived at herein the first petitioner herein Sri. S.Mohan agrees to withdraw aforesaid R.P.F.C.174/2022 as not pressed in the interest of Justice and the second petitioner agrees that she has no objection for the same. The second petitioner further agrees that in view of the settlement arrived at herein she would not execute the orders passed in C.Misc. 494/2009.

11. The 2nd Petitioner herein namely, Smt. M.S. Hema, agrees that she would not make any claim against the 1st Petitioner, Sri. S.Mohan or anyone related to the 1st petitioner in any forum regarding past, present or future maintenance for herself or for their son Master Rishi Atreya.

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12. Both the parties herein agree that in respect of the property bearing No.286/10, situated at 3rd Main Road, N.R. Colony, Bangalore-560019, Sri Vasu. S, brother of 1st Petitioner has filed O.S.No.8092/2010 against the 1st st Petitioner and sister of 1 petitioner, namely, Smt. Manjula Venkatesh and also against the 2nd Petitioner, herein namely, Smt. M.S.Hema.

13. The 1st Petitioner herein agrees that even though the suit was decreed regarding the partition since there was no clear direction regarding handing over of the possession from the 2nd Petitioner, the 1st Petitioner herein had filed R.F.A No.1739/2018. So also, the brother of 1st Petitioner namely, Sri. Vasu. S, had filed R.F.A No.1740/2018. The 2nd Petitioner herein agrees that the Suit Schedule Property in O.S.No.8092/2010 was the absolute property of the Father of the 1st Petitioner herein. She further agrees that after the death of the father of the 1st petitioner, the said property devolved on his wife and children. And after the death of the mother of the 1st Petitioner, only 1st petitioner, that is., S.Mohan, his brother Sri. Vasu.S and their sister Smt. Manjula Venkatesh are entitled for the share in the said property. The 2 nd Petitioner herein agrees that she, namely, Smt. M.S.Hema and/or her son Rishi Atreya do not have any right, title, interest or share in the suit schedule property of O.S.No.8092/2010.

14. The 2nd Petitioner herein namely, Smt. M.S.Hema has handed over the possession of the suit schedule property in the O.S. No.8092/2010 to Sri. S.Mohan,

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the 1st Petitioner herein by way of handing over the key of the said property.

15. Both the petitioners herein agree that all the movables to be exchanged between the parties, have already been exchanged as on the date of filling of this Petition and there are no more movables to be exchanged between them.

16. The 2nd Petitioner herein namely, Smt. M.S.Hema along with her son Rishi Atreya agree not to make any claim with regard the suit schedule property in O.S. No.8092/2010 before any forum in respect of the agreement entered into in filing of this Petition.

17. In the aforesaid circumstances, the 1st Petitioner and second petitioner agree to file an appropriate petition/application memo in the pending R.F.A No.1739/2018.

18. Both the parties further agree to file an appropriate memo/application/petition in another pending RFA.1740/2018 filed by Sri. Vasu against the parties herein and Manjula Venkatesh.

19. The parties herein agree that, Sri. S.Mohan the 1st Petitioner herein had filed M.C.No.2564/2007, on the file of Principal family Judge, at Bengaluru, praying for Divorce. The said Petition in M.C.No.2564/2007 was dismissed by the judgment dated 22.06.2012.

Subsequently, the 1st petitioner herein has filed M.F.A. No.8778/2012 before the Hon'ble High Court of Karnataka, against the judgment and decree dated 22.06.2012 and that the same is pending on the file of the Division Bench of the

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Hon'ble High Court of Karnataka. In view of the settlement arrived between the parties, the 1st Petitioner agrees to withdraw the above M.F.A as not pressed and the 2nd Petitioner herein has no objection for the same. Both the parties herein agree to place a joint Memo before the Hon'ble High Court of Karnataka, in this regard.

20. Both the parties herein agree that, the 1st Petitioner had filed G&WC No.212/2010 on the file of the Family Court Judge at Bangalore seeking for the custody of their son Master Rishi Atreya. The said G&WC No.212/2010 was allowed on 26.08.2016 considering the fact that their son Master Rishi Atreya has attained majority, the 1st Petitioner herein leaves it to the option of their son to meet his father or first petitioner as per his individual decision. The 2nd Petitioner herein has no objections for the aforesaid arrangement.

21. The Petitioner No.1 and 2 agree and undertake that they will not initiate or file any Criminal or Civil litigation against each other or their respective extended family members in connection with the events of the past related to their matrimonial differences.

22. Both the Petitioners herein submit that both Petitioners, their parents, relatives, friends or anybody related to them would not interfere or intervene in each other's walk of life at any time in future and each one of them is free to lead life as per the individual's choice.

23. Both the parties herein agree not to use any photographs, video graphs, SMS

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chat messages, mails, etc., between the two against each other in any forum.

VII. In view of the aforesaid agreement entered into between the parties, the parties pray that this Hon'ble Court be pleased to dissolve the marriage solemnized on 19.05.2005 at Laxmikanta Kalyana Mantap, No.42/49, 11th Main road, Padmannabhanagar, Bangalore-560070 by passing appropriate orders in terms of this agreement.

VIII. The Parties will appear on 14.11.2024 before the court for passing order in terms of the agreement".

5. However, it is deemed appropriate to refer Clause

21 of the mediation report, which states that, 'petitioner Nos.1

and 2 agree and undertake that they will not initiate or file any

criminal or civil litigation against each other or their respective

extended family members in connection with the events of the

part relating to their matrimonial differences.

6. In Clause 23, it indicates that, 'both the parties

herein agree not to use any photographs, video graphs, SMS

chat messages, mails etc., between two against each other in

any forum. In paragraph VII, it states that, 'in view of the

aforesaid agreement entered into between the parties in the