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Karnataka High Court
Smt. Leelavathi W/O Venkatesh G.M vs Venkatesh G M Alias Venkatesh S/O ... on 17 December, 2025
Author: S G Pandit
Bench: S G Pandit
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MFA No.101561/2022
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 17TH DAY OF DECEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
MISCELLANEOUS FIRST APPEAL NO.101561 OF 2022
BETWEEN:
SMT. LEELAVATHI W/O. VENKATESH G.M
AGE. 40 YEARS, OCC: HOUSEWIFE,
R/O. BHAIRUMBE, TALUK. SIRSI,
DISTRICT. UTTARA KANNADA-581401.
...APPELLANT
(BY SRI J.S.SHETTY, ADVOCATE.)
AND:
VENKATESH G.M. @ VENKATESH
S/O. MUNIYAPPA GOUDA
AGE. 41 YEARS, OCC. PRIVATE WORK,
R/O. SRINIVAS HOTEL, YERAGATTI,
TALUK. SAVADATTI,
Digitally signed by
DISTRICT. BELAGAVI-591126.
BHARATHI H M
Location: HIGH
COURT OF
KARNATAKA
...RESPONDENT
DHARWAD BENCH
Date: 2025.12.18
11:05:39 +0530
(NOTICE SERVED TO RESPONDENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 28 OF THE HINDU MARRIAGE ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 11.02.2022,
PASSED IN MATRIMONIAL CASE NO.60/2021, ON THE FILE OF
THE SENIOR CIVIL JUDGE, SIRSI, BY ALLOWING THIS APPEAL
AS WELL THE MATRIMONIAL CASE NO.60/2021, FILED BY THE
APPELLANT, WITH COST THROUGH OUT, IN THE ENDS OF
JUSTICE AND EQUITY.
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MFA No.101561/2022
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.11.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
CAV JUDGMENT
(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.)
The appellate/wife has filed this appeal under Section
28 of the Hindu Marriage Act, challenging the judgment
dated 11.02.2022, passed in M.C.No.60/2021, on the file of
Senior Civil Judge, Sirsi, wherein her petition for divorce
under Section 13(1)(ia) and (ib) of the Hindu Marriage Act,
1955 (for short, 'the Act') is dismissed.
2. Parties would be referred with their ranks as they
were before the trial Court, for the sake of convenience and
clarity.
3. Petitioner has filed the petition under Section
13(1)(ia) and (ib) of the Act, praying for dissolution of her
marriage, which has taken place on 17.05.2010 at Kolluru
Sri Mukambika Temple, in Kundapura taluk, in presence of
elders and well-wishers and family members. After the
marriage, respondent took her to Bengaluru and from the
wed-lock, she has given birth to a son by name Koushik on
20.09.2011. Initially their relationship was good. However,
later the relationship has become strained and respondent
is addicted to alcohol. He left the appellant and her child in
her parental house at Bhairumbe in Sirsi taluka and left the
place without giving his address. Initially respondent was
working at Belagavi. Later, it appears that he is living in
Bengaluru in different places away from petitioner and
completely escaped from performing his marital obligation
and not informed his whereabouts to the appellant.
Panchayants were convened several times in presence of
elders. But, respondent refused to lead marital life with her.
The petitioner waited for long time that he would mend his
ways. On 20.03.2018, respondent left the petitioner with
child in her parental house and has not come back. Hence,
he deserted the petitioner and hence prayed for decree of
divorce.
4. After service of notice of petition, respondent has
not appeared and hence, placed ex-parte.
5. On behalf of petitioner, the petitioner was
examined as PW.1 apart from marking Exs.P.1 to P.4 and
closed her side before the trial Court.
6. After recording evidence of the petitioner and
hearing arguments of learned counsel for petitioner, the
learned trial Judge has dismissed the petition on the ground
that the petitioner has not established cruelty and desertion
as pleaded in the petition.
7. Aggrieved by the said judgment of dismissal, the
petitioner/appellant has filed this appeal.
8. Even after service of notice of this appeal,
respondent has not appeared and not contested this appeal.
9. Learned counsel for appellant Sri J.S.Shetty,
would submit that since from long period there is no
cohabitation between the parties. The marriage of petitioner
and respondent is irretrievably broken down and there is no
chance of reunion. Even though he has established the
grounds of cruelty and desertion, the learned trial judge has
not considered the evidence in a proper perspective. The
evidence of petitioner is not disputed by the respondent.
Hence, under those circumstances, the learned trial Judge
ought to have decreed the petition. Hence, he prays for
allowing the petition by allowing this appeal.
10. Having heard the arguments of learned counsel
for appellant and verifying the appeal papers along with trial
Court records, the point that would arise for consideration is
as under:
"Whether the appellant is entitled for
decree of divorce as sought in the petition?"
11. Our finding on the above point is in the
'affirmative' for the following:
REASONS
12. The contention of appellant is that her marriage
with respondent had taken place on 17.05.2010 at
Sri Mukambika Temple, Kolluru, in Kundapur Taluk, in
accordance with the customs prevailing in their community.
To substantiate it, she has produced the marriage invitation
card as per Ex.P.1.
13. Furthermore, the appellant has produced the
Aadhar card of her and her son Koushik and also the birth
certificate of her son as per Exs.P.2 to P.4. The contention
of petitioner is that, after the marriage, she gave birth to a
male child on 20.09.2011, who is named as Koushik.
Initially the relationship between husband and wife was
cordial. Afterwards, the respondent was addicted to alcohol
and not providing maintenance to them. He has brought
both of them i.e. petitioner and her son to her parental
house on 20.03.2018 and left and never come back.
14. The above averments in the petition establishes
that since more than 7-½ years, the petitioner and
respondent are not residing together and even after service
of notice of M.C. petition and also the notice of this appeal,
respondent has not made any efforts to come forward to
contest the petition or to appear before mediation to settle
the dispute. These facts clearly establish that he has
intentionally deserted his wife and son for more than 2
years prior to filing of the petition.
15. The wife or husband can claim divorce under
Section 13(1)(ib) of the Act, 1955, if the petitioner
establishes that the respondent deserted for a continuous
period of not less than two years immediately preceding the
presentation of petition. The explanation to this section
defines that desertion means desertion by the other party
to the marriage without reasonable cause and without the
consent or against the wish of such party and includes
willful neglect of the petitioner by the other party to the
marriage.
16. Thus, the petitioner has to establish that the
respondent has willfully neglected the petitioner without
reasonable cause and without her consent and against her
wish.
17. When there is intentional desertion from the
respondent, and there is no effort from his side to reunite
with the petitioner and to lead marital life, we are of the
opinion that the petitioner has established the ground of
desertion. There is an intention from respondent to bring
cohabitation permanently to an end, because after he left
his wife in her parental house, he never made any attempt
to contact her. According to the petitioner, respondent is
changing his address often and thus, it became difficult for
her to trace his address. However, she has made all efforts
to trace his address and serve notice of divorce petition
before trial Court and also the appeal of this Court.
18. There is no reason to disbelieve the averments
made in the petition. Hence, we are of the considered
opinion that the appellant and respondent are not living
together since 7-½ years and respondent has willfully
deserted the companionship of the petitioner. Hence, the
petitioner has established the ground of desertion for grant
of divorce.
19. As far as cruelty is concerned, except examining
herself, the petitioner has not examined any independent
witness to prove cruelty inflicted upon her by the
respondent. Under those circumstances, we are of the
considered opinion that petitioner failed to prove the ground
of cruelty.
20. The Hon'ble Apex Court in the case of K.Srinivas
Rao Vs. D.A.Deepa [(2013) 5 SCC 226] has observed as
follows:
"31. We are also satisfied that this
marriage has irretrievably broken down.
Irretrievable breakdown of marriage is not a
ground for divorce under the Hindu Marriage
Act, 1955. But, where marriage is beyond
repair on account of bitterness created by the
acts of the husband or the wife or of both, the
courts have always taken irretrievable
breakdown of marriage as a very weighty
circumstance amongst others necessitating
severance of marital tie. A marriage which is
dead for all purposes cannot be revived by the
court's verdict, if the parties are not willing.
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This is because marriage involves human
sentiments and emotions and if they are dried
up there is hardly any chance of their
springing back to life on account of artificial
reunion created by the court's decree."
As observed by the Hon'ble Apex Court and in terms of the
provisions of Hindu Marriage Act, 1995, irretrievable
breakdown of marriage is not a ground for divorce.
However, in the instant case, in the peculiar facts and
circumstances of the case, we are of the opinion that the
marriage between the appellant and respondent cannot be
revived. More so, when the appellant and respondent are
not living together for more than seven years and as the
respondent/husband has remained ex-parte before the
Family Court and has remained absent before this Court.
21. In the result, we pass the following:
ORDER
i) Appeal filed under section 28 of the Hindu
Marriage Act, 1955, is allowed in part.
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ii) The marriage of petitioner solemnized with
respondent on 17.05.2010, at Kolluru Shri Mukambika
Temple, Kundapur, is hereby dissolved on the ground of
desertion by granting decree of divorce under Section
13(1)(ib) of the Hindu Marriage Act, 1955.
Sd/-
(S G PANDIT)
JUDGE
Sd/-
(GEETHA K.B.)
JUDGE
MRK
CT-CMU
