MANGALA Vs. MUTTAPPA

JUDGEMENT

(1.) This appeal is listed for admission. The learned counsels and respective parties have appeared before the Court and submitted that the parties have arrived at a settlement. They have also agreed that their marriage may be dissolved by a decree of divorce by mutual consent. They have presented a compromise petition before this Court which virtually contains all the ingredients of Section 13B(1) of the Hindu Marriage Act (for brevity hereinafter referred to as the Act). The parties have also filed their respective affidavits in support of their compromise petition in the nature of mutual consent divorce petition. It is seen from the records that the marriage between the parties taken place on 01.05.2018 and after the marriage they could not pull on the life with each other as the matrimonial relationship broken irretrievably. The wife herself has filed a petition for grant of divorce under Section 13(1)(ia) of the Hindu Marriage Act. The same was dismissed by the Principal Family Court, Gadag by order dated 09.09.2019, against which the present appeal is preferred. It is specifically stated that, the relationship was not cordial with each other and they were actually residing separately for more than a year. There is no chance of reconciliation and in spite of best conciliation they could not able to pull on the life together. Therefore, both of them have come to an agreement that their marriage has to be dissolved so as to live happily parting with each other. The contents of the compromise petition filed by the parties are hereby extracted:

(2.) Looking to the above said compromise petition it is clear that, the parties have agreed to withdraw all the mutual allegations made against each other in the divorce petition filed by them and they want to replace the said petition filed by the wife before the Trial Court with the present compromise petition which is in the nature of a mutual consent divorce petition under Section 13B of the Act. It is also seen that from the decision of the Apex Court, reported in (2017) 8 SCC 746 between Amardeep Singh Vs. Harveen Kaur, wherein it is said that, the parties have made out a case for waiving of the six months period as stipulated under sub-section (2) of Section 13B of the Act. Considering the nature of the case between the parties, the court has got power to waive off six months waiting period and grant divorce. Therefore, it is clear from the above said decision that, if there is absolutely no chance of reconciliation and the marriage was irretrievably broken down and no purpose would be served in dismissing the divorce petition. It is also worth to be noted that, when the parties have decided to reside separately and they could not reconcile each other in spite of their best efforts and also the conciliation by the elders of the family and also by the Court. In that eventuality, it is always better to grant them divorce so as to enable them at least to live happily in their future life. Therefore, having regard to the fact that the parties have been residing separately for more than one and half year and they have no children and they have specifically stated that they have no claims against each other as they have agreed to the terms of the compromise petition. In our opinion, it is a fit case where the Court can exercise its appellate jurisdiction by stepping into the shoes of the Trial Court itself, permitting the parties to replace their petition filed under Section 13(1)(ia) with that of a compromise petition filed under Section 13B of the Act in order to do justice to the parties and also to avoid future multiplicity of proceedings and complex the matter between the parties.

(3.) It is also worth to mention here that in a Judgment in MFA No.2169/2014 (FC) between Sri. Nagamadhu S/o. Puttamad Shetty Vs. Smt. Vasantha, the Principal Bench vide orders dated 17.12.2019 by invoking the appellate jurisdiction has granted decree of divorce, though the petition was not filed before the Trial Court under Section 13B of the Act, by virtually substituting the compromise petition under Section 13(B) of the Hindu Marriage Act to that of the petition filed by the parties before the Trial Court under Section 13(1)(i)(a) of the Hindu Marriage Act. Here also in this case the same principle can be applied and decree of divorce can be granted.