Karnataka High Court
Smt.D. Madhu vs Sri.S. Hari Prasad on 6 March, 2024
-1-
NC: 2024:KHC:9622-DB
MFA No. 6717/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.6717/2023 (FC)
BETWEEN:
SMT. D. MADHU
W/O. S. HARI PRASAD
D/O. B.G. DIVAKAR
AGED 36 YEARS,
BALAJI NILAYA,
R/AT NO.17/15, 6TH MAIN,
PAPAIAH GARDEN,
BANASHANKARI 3RD STAGE,
BANGALORE - 560085. ... APPELLANT
(BY SRI MANJUNATH B.R., ADVOCATE)
AND:
Digitally signed
by PRABHU
KUMARA SRI S. HARI PRASAD
NAIKA
Location: High S/O. C. SHIVAMURTHY
Court of AGED 38 YEARS,
Karnataka
R/AT NO.72, 2ND MAIN,
2ND CROSS, SOUTH AVENUE,
GOTTIGERE BANGALORE - 560 083.
PERMANENT ADDRESS:
ANWAR BUILDING,
NEAR SANTHEMAIDANA, CHANNAGIRI,
DAVANAGERE DT. - 577213. ... RESPONDENT
(BY SRI KISHORE KUMAR S., ADVOCATE FOR C/R)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT
-2-
NC: 2024:KHC:9622-DB
MFA No. 6717/2023
AND DECREE DATED 28.07.2023 PASSED IN M.C.NO.1266/2016 ON
THE FILE OF THE IV ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION
13(1) (ia) OF THE HINDU MARRIAGE ACT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Heard both sides.
2. Challenging the decree for dissolution of marriage
passed against her on the petition of the respondent and
rejection of her counter claim for divorce on the ground of
cruelty, the respondent in M.C.No.1266/2016 on the file of IV
Additional Principal Judge, Family Court, Bengaluru has
preferred the present appeal.
3. Respondent had filed M.C. No.1266/2016 against
the appellant seeking decree of dissolution of marriage under
Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (hereinafter
referred to as 'the Act')
4. For the purpose of convenience, the parties are
henceforth referred to as per their ranks before the trial Court.
NC: 2024:KHC:9622-DB
5. The marriage of the petitioner and the respondent
was solemnized on 29.01.2015 at Sri Radhabai Thimmappa
Bhandari Mantapa in Bengaluru. The petitioner filed M.C.
No.1266/2016 claiming that the respondent was suffering from
ulcerative colitis, an incurable disease and suppressing the said
fact, she married him. He further alleged that due to the non-
cooperation of the respondent, the marriage was not
consummated.
6. Respondent filed her counter to the petition denying
the allegations of cruelty and suppression of material fact.
Further she filed counter claim alleging cruelty by the petitioner
himself and sought a decree for dissolution of the marriage on
the said ground.
7. When the parties were adducing the evidence, the
respondent-wife filed I.A.No.10 seeking amendment to her
counter claim. By way of amendment she sought permanent
alimony of Rs.40,28,200/- and Rs.25,00,000/- for mental
agony. The petitioner filed his counter to the said application.
The trial Court initially listed the matter for hearing on that
application, then recorded the evidence, passed the impugned
NC: 2024:KHC:9622-DB
judgment and decree allowing the petition of the husband for
dissolution of marriage and rejected the counter claim.
8. Learned counsel for the appellant submits that as
the trial Court did not hear and dispose of I.A.No.10, the
proceedings of the trial Court are vitiated and that shows the
non-application of the mind by the trial Court.
9. Learned counsel for the respondent-husband
submits that the wife herself did not pursue her application.
Therefore, no fault can be imputed to the trial Court in not
considering the application.
10. The order sheet of the trial Court dated 06.09.2022
shows that the counsel for the respondent-wife brought to the
notice of the Court about the pendency of I.A. Nos.10 and
I.A.No.11 and the trial Court directed the pending clerk to list
the undisposed I.As by the next hearing date, namely,
20.09.2022. Accordingly, on 20.09.2022, the matter was listed
for hearing on I.A. The trial Court without hearing the I.A.
issued summons to the witness and went on recording the
evidence and disposed of the matter.
NC: 2024:KHC:9622-DB
11. Under the circumstances, the contention that the
respondent herself did not pursue I.A.No.10 cannot be
countenanced. The records show the non-application of the
mind by the trial Court. Therefore, the matter requires to be
remanded back to the trial Court for consideration of I.A.No.10.
Trial Court shall record the evidence, if any, on the said
application and dispose of the entire case afresh. Hence, we
pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment and order dated 28.07.2023
in M.C. No.1266/2016 passed by IV Additional
Principal Judge, Family Court, Bangalore is hereby set
aside.
iii. The matter is remanded to the trial Court. The trial
Court shall record evidence in I.A.No.10 and on
amended petition, if any, dispose of the matter afresh.
iv. To avoid further delay, the parties are directed to
appear before the trial Court on 01.04.2024.
v. On such appearance, the trial Court shall dispose of
the matter as expeditiously as possible at any rate
NC: 2024:KHC:9622-DB
within six months from the date of appearance of the
parties. If any of the parties fails to appear before the
trial Court, the trial Court shall proceed with the
matter in accordance with law.
vi. Registry shall transmit the Records to the trial Court
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
MBM
