Sri. Vinay Nagappa vs Dr. Rajini Surendra

K.L. Manjunath, J.—The present appeal is filed by the husband aggrieved by the judgment and decree passed by the I Additional Principal Judge, Family Court, Bangalore in O.S. No. 156/2010 dated 25.1.2006. The admitted facts are that,

The marriage between the parties was solemnised in Bangalore 25.5.2001. The appellant and respondent are doctors. They resided together at US after the marriage. Out of the wed lock a son was born at USA on 6.6.2006. That the respondent-wife has been residing in Bangalore since January 2010. When she was in Bangalore the appellant filed a divorce petition before the Court of North Carolina, USA and obtained a decree of divorce therein. Thereafter, the present suit came to be filed by the wife to declare that decree of divorce granted on 14.5.2010 by the General Court of Justice, District Court Division, Wake County, North Carolina, USA is not binding on her and to further declare that she is the legally wedded wife of the appellant and said suit came to be decreed on 25.1.2012 declaring that the decree of divorce granted by the General Court of Justice North Carolina is not binding on the respondent-wife and it is further declared that she is the legally wedded wife of the appellant. This order is called in question in this appeal. In the meanwhile the appellant has filed a complaint against the respondent-wife in petition No. 08 CVD 7974 and he had filed a petition before General Court of Justice, District Court Division, Wake County, North Carolina, USA seeking custody of minor son and has also obtained an ex-parte temporary custody of minor child by order dated 27.5.2008. Later the same is modified on 18.7.2008 giving joint custody of the child to the appellant and the respondent. Thereafter the appellant has obtained an order from the American Court for permanent sole custody which was granted on 11.2.2010. The respondent wife has also filed a petition in G & W.C. No. 6/2010 seeking custody of minor child which was later withdrawn and thereafter has filed a petition under the Protection of Women from Domestic Violence Act, 2005 in C. Misc. No. 6/11 before the IV MMTC, Bangalore and she has also filed one more petition in G & W.C. No. 269/2011 for custody of the child and the same is pending. In addition to that the respondent has filed a petition for bigamy in C.C. No. 7245/2013 which is now pending before VIII ACMM, Bangalore.

The matter was heard by this Court at length. Thereafter having regard to the background of this case and in the interest of both the parties and also in the interest of minor son, the Court suggested the parties to settle their dispute amicably since the parties are living separately from 2010 and both of them are in loggerheads with each other and it is not possible to restore their relationship more particularly in the background of the appellant taking a second wife after obtaining decree of divorce from the Court of North Carolina, USA. Thereafter the parties have settled their disputes and they have agreed to obtain decree of divorce by mutual consent by filing a petition u/s 13B of the Hindu Marriage Act along with an application u/s 151 of CPC for converting the appeal into a joint petition.

Considering the background of this case, we are of the view that as there are no chances for them to live together as husband and wife, as appellant-husband is working in North Carolina, USA and wife is working in a private Hospital at Bangalore, and minor son is in the custody and care of mother in Bangalore and the appellant has already taken second wife, to give a quietus to the disputes pending between them in various courts both in India and USA, we are of the view that the application filed u/s 13-B of the Hindu Marriage Act has to be accepted. Accordingly, I.A. filed seeking permission to convert the appeal u/s 13-B of the Hindu Marriage Act is accepted by this Court.

Accordingly, we accept the petition filed u/s 13-B of the Hindu Marriage Act.

Now the parties in the petition have agreed that the respondent-mother shall have physical custody of the child and she shall be the guardian of the child.

However, the appellant being the father of the child is having a visitation rights whenever he visits India with prior intimation and at mutual convenient time without disturbing the child''s education and curricular activities.

The parents of the appellant who are grand parents of the child are entitled to visit the child twice a month subject to convenience of the child and the respondent-wife.

The appellant has agreed that he or his parents would not remove the child from mother and would not take the child outside the jurisdiction of this Court or out side India. Liberty is given to the appellant to speak to his son over phone or and he is also at liberty to send gifts to the child.

The appellant shall make necessary arrangements to withdraw the SLP filed by him before the Supreme Court in SLP No. 19166/2011.

The appellant has also agreed to pay a sum of Rs. 60,00,000/- towards full and final settlement of maintenance and education of the child. Out of Rs. 60,00,000/- a cheque for Rs. 30 lakhs has been issued by the appellant-father in the name of minor son. The respondent-wife shall invest the same in Fixed Deposit in any nationalised Bank of her choice in the name of minor to be operated by her as guardian of her son and remaining Rs. 30 lakhs shall be paid within 8 weeks from today and the same shall be invested in the fixed deposit in her son''s name. Liberty is given to the respondent to withdraw the periodical interest for the benefit and welfare of her son as and when the same accrues and she is entitled to utilize the same in the manner in which she desires.

Both the parties shall inform the residential address and contact numbers of either parties as and when the same is changed till the child attains the age of 18 years.

The appellant has undertaken that he would not initiate any proceedings pertaining to the minor child in USA or any other place.

In view of the settlement arrived at as respondent is appointed as sole guardian of the minor son necessary application if required shall be made before North Carolina, USA for modification of the permanent custody given to the father and necessary arrangements shall be made for withdrawal of Interpol red alert on respondent.

In view of the settlement arrived at between the parties, since the child is an American citizen, if any permission is required to be obtained either from Government of India or from USA, the appellant shall cooperate with the respondent for obtaining such permissions.

Similarly, the respondent shall also withdraw C. Misc. 6/11 on the file of IV MMTC, Bangalore in Crl. A. No. 499/12 on the file of District: and Session'' Court at Bangalore, G & WC No. 269/11 pending on the file of Family Court, Bangalore and also C.C. No. 7245/2013 pending before VIII Additional CMM, Bangalore. If any of these cases are not compoundable it is open for the parties to file a petition to quash the proceedings u/s 482 of Cr.P.C. in view judgment of the Supreme Court in Gian Singh''s case.

It is agreed between the parties that in view of the compromise arrived at, the judgment and decree passed in O.S. No. 156/2010 on the file of Principal Judge, Family Court at Bangalore has to be modified in terms of the consent petition.

It is agreed between the parties that if any one of the parties fail to adhere to the terms and conditions of the compromise incorporated u/s 13-B of the Hindu Marriage Act, it is always open for either of the parties to file an application for revival of this appeal. Accordingly, this appeal is disposed of dissolving the marriage solemnized between the parties on 25.5.2001 which was registered on 315.2001. Parties to bear their own costs.

Registry is directed to draw modified decree in the terms as incorporated u/s 13-B of the Hindu Marriage Act.