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Surekha W/O Uday @ Udachappa vs Uday @ Udachappa Rudrappa on 20 July, 2021

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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.,.
2

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
3

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
4

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
5

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.
6

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
7

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
8

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
9

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.

10

In view of disposal of main appeal, pending I.As. if

any, pale into insignificance.

Sd/-

JUDGE

Sd/-

JUDGE
Mrk/-

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