G. Basavaraj S/O G. Basanna vs Smt. Jayamma W/O G. Basavaraj And
2023 Latest Caselaw 5838 Kant

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                                                                NC: 2023:KHC-D:9302-DB
                                                            MFA No. 102724 of 2017




                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                          DATED THIS THE 22ND DAY OF AUGUST, 2023
                                                  PRESENT
                         THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
                                                    AND
                               THE HON'BLE MR JUSTICE G BASAVARAJA
                   MISCELLANEOUS FIRST APPEAL NO. 102724 OF 2017 (FC)


                 BETWEEN:
                 G. BASAVARAJ S/O. G. BASANNA,
                 AGED ABOUT 40 YEARS,
                 R/O: WARD NO.30,
                 ALLIPURA, BALLARI-583101.
                                                                           ...APPELLANT
                 (BY SRI.M.AMAREGOUDA, ADVOCATE)


                 AND:
                 SMT. JAYAMMA W/O. G. BASAVARAJ AND
                 DAUGHTER OF UMAPATHI,
                 AGED ABOUT 31 YEARS, OCC: HOUSEWIFE,
                 R/O: SINGANAHALLI VILLAGE,
                 BOMMANAHAL MANDALAM, RAYADURGAM TALUK,
                 ANANTHAPUR DISTRICT, A.P.-515871.
JAGADISH T R                                                            ...RESPONDENT
HIGH COURT
OF               (RESPONDENT-SERVED)
KARNATAKA
2023.08.24
16:02:53 +0530
                        THIS MFA IS FILED UNDER SECTION 19(1) OF HINDU
                 MARRIAGE ACT, AGAINST THE JUDGMENT AND AWARD DATED
                 29.05.2017 PASSED IN M.C. NO. 45/2017 ON THE FILE OF THE
                 PRINCIPAL     JUDGE,    FAMILY    COURT,   BALLARI,   ALLOWING   THE
                 PETITION FILED UNDER SECTION 13(1)(ia) OF HINDU MARRIAGE
                 ACT.


                        THIS    APPEAL   COMING     ON    FOR   HEARING,   THIS   DAY,
                 S.R.KRISHNA KUMAR J., DELIVERED THE FOLLOWING:
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                                         NC: 2023:KHC-D:9302-DB
                                       MFA No. 102724 of 2017




                          JUDGMENT

This appeal by the unsuccessful husband is directed

against impugned judgment & decree dated 29.05.2017 passed

by the Principal Judge, Family Court, Ballari, whereby the said

petition filed by appellant/husband seeking decree of divorce by

dissolving the marriage solemnized between himself and

respondent/wife on 20.05.2001, on the ground of cruelty under

Section 13(1)(i-a) of the Hindu Marriage Act, 1955 was

dismissed by the Family Court.

2. The material on record discloses that the appellant

and respondent are the husband and wife and their marriage

was solemnized on 20.05.2001. The appellant/husband

instituted the aforesaid proceedings before the Family Court

seeking decree of divorce alleging cruelty on the part of the

respondent/wife.

3. Before the Family Court, respondent/wife though

served with notice, chose to remain unrepresented and as such,

she was placed exparte. The Family Court permitted the

appellant/husband to examine himself as PW1 and got marked

the documents as Ex.P1 to P5, despite which, the Family Court

NC: 2023:KHC-D:9302-DB MFA No. 102724 of 2017

proceeded to pass the impugned judgment and decree

dismissing the petition filed by the petitioner/husband,

aggrieved by which, the appellant/husband is before this Court

by way of present appeal.

4. Heard the learned counsel for the

appellant/husband and perused the material on record. Even in

the present appeal, respondent/wife has been served with

notice of this appeal and she has chosen to remain

unrepresented.

5. A perusal of the material on record including the

impugned judgment and decree will indicate that the Family

Court failed to consider or appreciate unimpeached,

uncontroverted and unchallenged pleadings and evidence of the

appellant without appreciating that the respondent/wife had

neither contested the petition nor filed objections or cross-

examined the appellant/PW1 or adduced any rebuttal evidence

so as to discredit the pleadings and evidence of the appellant.

Under these circumstances, having regard to the provisions

contained under Order VIII Rules 5 and 10 CPC read with

Section 58 of the Indian Evidence Act, 1872, we are of the

NC: 2023:KHC-D:9302-DB MFA No. 102724 of 2017

considered view that the Family Court committed a serious and

grave error in dismissing the petition by passing the impugned

judgment and decree, which deserves to be set-aside.

6. In the result, we proceed to pass the following:

ORDER

a) Appeal stands allowed.

b) The impugned judgment and decree passed by the Family Court is hereby set-aside.

c) The petition in MC No.45/2017 on the file of learned Principal Judge, Family Court, Ballari is hereby allowed.

d) The marriage between the appellant/husband and respondent/wife solemnized on 20.05.2001 stands dissolved by a decree of divorce.

e) Registry to draw decree accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

JTR