Smt Pavithra @ Ambika vs Sri J Joganna
2022 Latest Caselaw 5677 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 29TH DAY OF MARCH, 2022

                          PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                   M.F.A.No.1958/2015

BETWEEN:

SMT. PAVITHRA @ AMBIKA
W/O.J.JOGANNA,
D/O.OBALAGIRIYAPPA,
AGED ABOUT 23 YEARS,
R/O.KASAVANAHALLY VILLAGE,
HIRIYUR TALUK-571311,
CHITRADURGA DISTRICT.                   ...APPELLANT

(By Sri B.M.Siddappa, Adv.)

AND:

SRI J. JOGANNA
S/O GURUSIDDANAYAKA,
AGED ABOUT 29 YEARS,
R/O.K.M.KOTTIGE,
HIRIYUR TALUK-571311,
CHITRADURGA DISTRICT.                   ... RESPONDENT

(By Sri Patel. D. Karegowda, Adv.)


       This M.F.A. is filed under Section 28(1) of the Hindu
Marriage Act, against the judgment and decree dated
11.02.2015 passed on MC No.2/2014 on the file of the Senior
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Civil Judge at Hiriyur, allowing the petition filed u/s 13(1) of
Hindu Marriage Act.


      This appeal coming on for Final Hearing, this day, Alok
Aradhe J., delivered the following:


                           JUDGMENT

1. This miscellaneous first appeal under Section 28 of the

Hindu Marriage Act, 1955 (for short, 'the Act') has been filed

against the order dated 11.02.2015 passed by the Trial Court,

by which the petition filed by the respondent under Section

13(1) of the Act has been allowed and the marriage between

the parties has been dissolved by a decree of divorce on the

ground of desertion.

2. Facts giving raise to the filing of this appeal briefly

stated are that the marriage between the parties was

solemnized on 09.12.2012 at Kasavanahally village, Hiriyur

Taluk. The respondent-husband filed the petition on

20.01.2014 seeking dissolution of marriage on the ground

that the appellant has deserted the respondent. The Trial

Court by order dated 11.02.2015 has allowed the petition

filed by the respondent.

3. We have heard the learned Counsel for the parties at

length.

4. The relevant extract of Section 13 of the Act reads as

under:

"13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) xxx xxx

(ia) xxx xxx

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii xxx xxx"

5. Thus, it is evident that in order to seek the decree of

divorce under Section 13(1)(ib) of the Act, the husband/wife

should have deserted continuously for a period of two years

immediately preceding the date of presentation of the

petition.

6. In the instant case, the marriage was performed

between the parties on 09.12.2012. However, even before

the expiry of the period of two years from the date of

marriage, the petition seeking dissolution of marriage was

filed on 20.01.2014 on the ground of desertion under Section

13(1)(ib) of the Act. The Trial Court has failed to appreciate

the aforesaid aspect of the matter. The impugned judgment

and decree has been therefore passed in violation of the

mandate contained under Section 13(1)(ib) of the Act. The

same, therefore, cannot be sustained in the eye of law. The

impugned judgment and decree dated 11.02.2015 is

accordingly set aside.

In the result, the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

KK