Dr. Shilpa vs Dr. Niranjan
2022 Latest Caselaw 12503 Kant

                                   1   MFA No.200952/2022




            IN THE HIGH COURT OF KARNATAKA
                     KALABURAGI BENCH

       DATED THIS THE 17TH DAY OF OCTOBER, 2022

                            PRESENT

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

                               AND

       THE HON'BLE MR. JUSTICE ANIL B. KATTI


MISCELLANEOUS FIRST APPEAL No.200952/2022 (MC)


BETWEEN:

Dr. Shilpa W/o Niranjan Yeli
(D/o Late Ravindra Gangu)
Aged about 40 years
Occ: Dentist
R/o H.No.8-8-36/48
K.H.B. Colony, Bidar-585401
                                              ... Appellant
(By Sri Ravi B. Patil, Advocate)


AND:

Dr. Niranjan S/o Dr. Rudramuni Yeli
Aged about 42 years
Occ: Dentist
R/o Madalli House
Mrutyanjaya Nagar
P.B. Road, Ranebennur
Tq. Ranebennur, Dist. Haveri-581110

                                            ... Respondent
(By Sri Ganesh Naik, Advocate)
                                 2            MFA No.200952/2022




      This Miscellaneous First Appeal is filed under Section 19
(1) of the Family Courts Act, 1984 read with Section 28 of the
Hindu Marriage Act, 1955, praying to call for the records in
M.C.No.59/2021 on the file of Principal Judge, Family Court at
Bidar, to set aside the judgment and decree in M.C.No.59/2021
dated 11.02.2022 passed by the Principal Family Judge at Bidar
and consequentially to allow the petition granting a decree of
dissolution of marriage by allowing the present appeal, in the
interest of justice and to pass an order as to costs of this
appeal, and any other order as this Court deems fit in the
circumstances of the case, in the interest of justice and equity.


      This    appeal   coming   on   for    admission   this   day,
K.S.Mudagal J., delivered the following:


                          JUDGMENT

The appellant, respondent and both side counsel are

present. The parties are duly identified by their respective

counsel. The appellant and the respondent submit petition

under Order XXIII Rule 3 CPC read with Section 13(B) of

the Hindu Marriage Act (for short, 'H.M. Act').

2. Heard the parties on the said petition.

3. Both admit voluntary execution of the petition

and the terms of the same. Heard both counsel.

Challenging the dismissal of her petition for decree of

dissolution of marriage, the petitioner/wife in

M.C.No.59/2021 has preferred this appeal.

4. The marriage of the parties was solemnized on

01.11.2009 at Bidar. The couple have no issues out of the

marriage. Because of the differences between them,

admittedly, the parties are living separately since 2016.

The appellant filed M.C.No.59/2021 before the Principal

Judge, Family Court, Bidar under Section 13 (i-a) (i-b) of

the H.M. Act seeking decree for dissolution of marriage.

That came to be dismissed.

5. Now by this compromise petition the parties want

to convert the said petition to one under Section 13(B) of

the H.M. Act. Both the parties are well qualified and

understand the implications of their acts. The

requirements of Section 13(B) of the H.M. Act namely that

there should be separation for one year preceding the

petition is complied as the parties are living separately

since 2016.

6. So far as the waiting period of six months

contemplated under Section 13 (B) (1) of the H.M. Act

subsequent to the presentation of the petition, the records

show that the parties are fighting this litigation since

07.08.2021. During this period, they have neither

resolved their dispute nor they have resolved to withdraw

the litigations. Therefore, the said period of six months

already stood complied. Under the circumstances,

satisfied that the parties have not been able to live

together and have mutually agreed that the marriage

should be dissolved. The Hon'ble Supreme Court in the

judgment in Amardeep Singh vs. Harveen Kaur1 held that

there is no impediment to grant a decree of divorce by

mutual consent. Thus all the requirements of Section

13(B) of the H.M. Act are complied. Hence, the following:

ORDER

(i) The appeal is allowed. The impugned

judgment and decree is hereby set aside.

(2017) 8 SCC 746

(ii) The petition presented by the parties under

Order XXIII Rule 3 read with Section 13 (B)

of the Hindu Marriage Act is hereby allowed.

(iii) The marriage of the appellant and respondent

solemnized on 01.11.2009 at Bidar is hereby

dissolved.

(iv) The appellant has given up her right to

alimony receiving `5,00,000/- (Rupees Five

Lakh Only) by way of remittance into her

Account No.62269118483 with State Bank of

India, Main Branch, Bidar on 22.08.2022

from the respondent in full settlement of her

claim.

Draw decree accordingly.

Sd/-

JUDGE

Sd/-

JUDGE swk