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2023 Supreme(Online)(Kar) 33514
KARNATAKA HIGH COURT
MR RAVI V HOSMANI, J
SRI. NAGARAJA @ RAJU – Appellant
Versus
MRS. LEELAVATHI K.K. @ SHILPA – Respondent
WRIT PETITION NO. 18293 OF 2018 (GM-RES)
For the Appellants/Petitioners: SRI. SRINIVASA K.N.
For the Respondents: SRI. SHIVA PRASAD C.
Parties to a divorce settlement can seek modification of maintenance due to changed circumstances, despite prior agreements restricting claims.
Headnote:(A) Hindu Marriage Act, 1955 - Sections 25(1) and 25(2) - Consent divorce - Modification of maintenance - Parties to a divorce decree are entitled to seek modification of maintenance due to changed circumstances despite an earlier consent decree. The court clarified that terms in a settlement restricting maintenance claims are against public policy. (Paras 10-21)
(B) Family Law - Decree of divorce by mutual consent - Even with consent orders, parties can apply for variation or modification of maintenance under the Act if circumstances change. Memorial settlements cannot bar statutory rights to claim maintenance. (Paras 8, 18, 21)
Facts of the case:
The petitioner challenged a ruling regarding the modification of a divorce decree that had established terms for maintenance and alimony after a mutual agreement. He argued that modifications are not maintainable post-consent decree as per statutory provisions. (Paras 2-9)
Findings of Court:
The court determined that modifications in maintenance under Section 25(2) are valid, emphasizing that earlier settlements cannot impede statutory rights to maintenance, thus allowing changes in maintenance under new circumstances. (Paras 18-21)
Issues: Is a petition for modification of maintenance maintainable post mutual divorce decree? (Para 12)
Ratio Decidendi: The court held that parties maintain the right to seek amendments to maintenance provisions if there is a demonstrated change in circumstances, regardless of previous agreements barring such claims. (Paras 20-21)
Result: Writ petition dismissed with costs.
| Table of Content |
|---|
| 1. background of marriage and divorce petition. (Para 2 , 3 , 4) |
| 2. contention regarding maintenance modification. (Para 5 , 8 , 10) |
| 3. discussion on maintenance rights post-divorce. (Para 11 , 12 , 14) |
| 4. judicial reasoning on maintenance modification. (Para 18 , 20) |
| 5. final decision on writ petition. (Para 21) |
ORDER
Challenging order dated 04.10.2017 passed by VI Additional Principal Judge, Family Court, Bengaluru in Misc. Petition no.90/2016 filed in M.C.no.4278/2013 at Annexure-H, this writ petition is filed.
2. Sri. Srinivasa K.N., learned counsel for petitioner submitted that marriage of petitioner with respondent no.1 was solemnized on 13.09.2009 at Saraswathi Convention Hall, Magadi Road, Bengaluru. From said marriage, they begot respondent no.2 on 19.12.2009.
3. Thereafter, petitioner and respondent no.1 filed M.C.no.4378/2013 under Section 13B of Hindu Marriage Act, 1955 (for short 'H.M. Act') for divorce by mutual consent. Said petition was referred to 'Bangalore Mediation Centre'. On successful conciliation, settlement was arrived at between parties. Memorandum of settlement was filed on 26.04.2014 (Annexure-B), whereunder petitioner had agreed to pay:
i. Rupees One lakh to respondent no.1.
ii. Rupees Two lakhs to be kept in fixed deposit in name of respondent no.2.
iii. To bear premium of LIC policy for Rupees Two Lakhs Twenty Thousands in name of respondent no.2.
4. It was submitted that, in terms of settlement, petitioner paid Rupees One lakh to respondent no.1 by way of cheque bearing no.168652 dated 25.04.2014, drawn on Karnataka Bank Ltd. He also kept Rupees Two lakhs in fixed deposit vide FDR no.928418 dated 26.04.2014 in name of respondent no.2 and also obtained LIC policy in his name i.e., bond bearing no.361605694 for sum assured i.e., Rupees Two Lakhs Twenty Thousand, and handed over same to respondent no.1 on 26.04.2014. Taking note of same, M.C.no.4278/2013 was decreed as per settlement (Annexure-D).
5. After lapse of four years, respondent no.1 filed Misc. Petition no.90/2016 (Annexure-E) under Sections 25 (2) and 26 of H.M. Act, seeking for modification of consent divorce decree at Annexure - D and for grant of monthly maintenance at Rupees Twenty Thousand and Rupees Forty Lakhs as additional permanent alimony to respondent no.1 and Rupees Ten Thousand as monthly maintenance to respondent no.2.
6. After service of summons in said petition, petitioner filed application under Section 151 of CPC (Annexure-F), questioning maintainability of Miscellaneous Petition in view of earlier consent decree. Said application was opposed.
7. Without proper appreciation of contentions of petitioner, vide impugned order dated 04.10.2017 (Annexure-H), Family Court dismissed application. Aggrieved by said order, writ petition was filed.
8. It was submitted that in view of decision of Hon’ble Supreme Court in case of K. Srinivasappa and Ors. vs. M. Mallamma and Ors ,
9. It was further submitted that as decree of divorce was not granted under Section 25 (1) of H.M. Act, petition for modification under Section 25 (2) of H.M. Act, would not be maintainable. It was contended that same would be contrary to very object in enacting Section 89 of CPC. On above grounds, learned counsel sought for quashing impugned order.
10. On other hand, Sri. Shiva Prasad E, learned counsel appearing for respondents submitted that though petition for divorce was filed under Section 13B of H.M. Act, and decree of divorce was passed after settlement arrived at between parties in mediation, Section 25 (1) of H.M. Act, enables either of parties to seek for grant of maintenance.
