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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JULY 2021
PRESENT
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR
MFA NO.104172/2016 (MC)
BETWEEN:
SMT.SUREKHA W/O. UDAY @
UDACHAPPA DODDANNAVAR @ BELAGALI
AGE: 42 YEARS, OCC: LECTURE,
R/O. B.S.ARTS COLLEGE, KUDACHI,
TQ: RAIBAG, DIST: BELAGAVI.
…APPELLANT.
(BY SHRI VITTHAL S. TELI SHRI KIRAN ANGADI, ADVOCATES.)
AND:
SHRI UDAY @ UDACHAPPA RUDRAPPA
DODDANNAVAR @ BELAGALI
AGE: 44 YEARS, OCC: ADVOCATE
LIC AGENT,
R/O.MATOLLI, TQ: SAVADATTI,
DIST: BELAGAVI.
…RESPONDENT.
(BY SHRI VIDYASHANKAR G. DALWAI, ADVOCATE.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 28 OF THE HINDU MARRIAGE ACT, 1955, PRAYING
TO SET ASIDE THE JUDGMENT DECREE DATED 10.6.2016,
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, RAIBAG, IN
M.C.NO.11/2014, ETC.,.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
SHRI PRADEEP SINGH YERUR, J, DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal by the wife lays a challenge to the
Judgment Decree dated 10.6.2016, passed by the
Senior Civil Judge and JMFC, Raibag, in M.C.No.11/2014,
whereby the divorce petition preferred by the wife came
to be rejected.
2. Parties shall be referred to as per their status
before the trial Court.
3. Brief facts of the case are as under:
The marriage of petitioner with respondent was
solemnized on 9.6.2010 at Bailhongal as per the
prevailing customary rites and ceremonies pursuant to
which the petitioner lived with the respondent in the
matrimonial home. The wife was working as ‘Hindi
Lecturer’ in Shankaranand Arts College since 2000 and
was earning a monthly salary of Rs.2,000/-. The
petitioner wife was residing at Kudachi, whereas the
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respondent husband was at Matolli village. It is the
grievance of the wife that the husband committed an act
of mental harassment and physical torture and that the
husband had illicit affair with another woman. Despite
several attempts made by the wife to live with the
husband, the same was not fruitful, including the effort of
panchayat to see that the husband takes care and
provides maintenance to his wife in a proper amicable
manner. In the entire period of marital life, the husband
had visited the house of wife on few times and thereafter
he stopped even visiting the wife. Since the marital bond
between the wife and husband withered away and came
to a standstill. There was no purpose in continuing the
said matrimony. Accordingly the wife preferred the
present divorce petition on the ground of cruelty and
desertion under section 13(1)(ia) and (ib) of the Hindu
Marriage Act, 1955.
4. On service of notice the respondent husband
filed his detailed statement of objections admitting the
marriage. But however denied the allegations of any
cruelty being meted to his wife. He has contended that it
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is because of his efforts the employment of his wife was
confirmed and he had mentally and monetarily supported
the wife to a large extent in pursuing her higher
education despite him not being in a very financially
lucrative position. He further pleaded that he was ready
and willing to join and lead a peaceful marital life with his
wife. Accordingly he sought for dismissal of the divorce
petition.
5. In order to prove the case, the wife examined
herself as PW.1 and two other witnesses as PW.2 and
PW.3 and got marked the documents as Exs.P.1 to P.3,
whereas the husband examined himself as RW.1 along
with a witness as RW.2 to substantiate his case. After
considering the pleadings and evidence, both oral and
documentary, after framing the issues the trial Court
rejected the divorce petition of the wife.
6. Having heard the learned counsel for the wife
and the husband, considering the fact that the matter
pertains to a marital relationship, wherein emotions are
involved and elements of human touch being required, we
directed the parties to be present before the Court to see
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if there could be any element of reconciliation between
the parties in rejoining and living happy marital life. After
the personal hearing provided to both the parties along
with their counsel wisdom as dawn on both, the wife and
the husband to amicably settle the matter, so that they
could live their life peacefully by parting as friends rather
than having bitterness for the rest of their lives. It is also
noticed that no child is begotten from the marriage.
7. The parties together have this day filed an
application under section 13B of the Hindu Marriage Act,
1955, for a mutually consented divorce. The said
application is accompanied by the individual affidavit of
both the parties. We have gone through the contents of
the petition and there is no reason to doubt the veracity
of the same which is identified by the respective counsels.
Both the parties are also present before the Court. On
ascertaining with the parties as to whether there is any
force, coercion or undue influence in their filing the
present petition for mutual consented divorce, both the
wife and husband have answered in the negative.
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8. It is contended by the learned counsel
appearing for the parties also that the marriage has been
irretrievably broken down and no fruitful purpose would
be served in continuing with the stalemate of the
marriage on paper which is not in actual realistic
existence.
9. In order to decide or consider a petition filed
under section 13B of the Hindu Marriage Act, it is
essential to see that the parties have voluntarily filed the
petition seeking for a mutually consented divorce by
settling their differences including alimony and any other
issues pending between them. Secondly the parties
should have made all efforts for mediation/conciliation to
reunite and the efforts made therein having turned futile
without any success. Thirdly the parties should have
complied with the statutory period of separation of one
year.
10. In the present case on hand all the above
three requirements have been complied with. The petition
for divorce having been filed by the wife way back in the
year 2016, nothing having been materialized; despite the
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rejection of the divorce petition, the parties have not
joined together to live in matrimony. There is no
childbirth from the marriage. The parties have agreed to
dissolve their marriage in view of there being no
possibility of them living together amicably and leading
happy marital life. Both the parties have also agreed that
there shall not be any maintenance or alimony to be
given by the husband and neither is it demanded by the
wife.
11. Parties also agree that there is nothing to be
given and nothing to be taken from each other with
regard to any articles as the same is settled between
themselves. We have enquired with the wife as to her
avocation and monetary sustenance and it is stated that
she is educated and financially self sufficient and gainfully
employed. It is also seen from the records that both of
them have been separated since 2014. Hence there being
no probability of their joining together they have amicably
decided to part ways in a cultured manner. Both the wife
and husband have voluntarily agreed to unconditionally
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withdraw all the allegations leveled against each other in
the petition filed for divorce.
12. Both the parties have also filed an application
under section 13B(2) to waive of the mandatory
cooling/waiting period of six months along with their
respective affidavits. We have perused the same. There is
no reason to doubt the veracity of the same though the
Act says that there has to be a mandatory waiting period
for a period of six months prior to the date of filing of the
petition under section 13B of the Hindu Marriage Act,
1955, the said provision is directory and not mandatory
and the same depends upon facts and circumstances of
each case. In the present case it is seen that the parties
have separated since 2014 and there is no likelihood of
their joining together to live and enjoy the bliss of marital
relationship and since the parties have already explored
such possibilities which has been unsuccessful and left
with no other alternative have approached this Court with
this present petition for mutually agreed consent divorce.
13. Under these conditions and factual scenario it
becomes the duty of the Court to see that when there is
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no possibility of the parties to the marriage joining for
reunion to resume cohabitation and there is no catalytic
force of child born from the marriage, it becomes all the
more bleak to rejoin weave the castle of love. Therefore
it would be wise for the parties to go their way and part
as friends rather than carry bitterness all their life. Hence
we are of the view that the application filed under section
13B(2) for waiving the period of six months deserves to
be allowed. Accordingly it is allowed. The parties having
filed their affidavit confirming the terms and conditions of
separating by way of mutual consent divorce is accepted
and there is no reason to bind the parties further to
marital cord when they have decided to part ways.
Accordingly we pass the following:
ORDER
The appeal is disposed of. The petition filed under
section 13B of the Hindu Marriage Act, 1955 is allowed in
accordance to the joint petition filed by the parties. The
marriage solemnized between the parties on 9.6.2010 at
Bailhongal is hereby dissolved by a decree of divorce and
there shall be no order as to costs.
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In view of disposal of main appeal, pending I.As. if
any, pale into insignificance.
Sd/-
JUDGE
Sd/-
JUDGE
Mrk/-