Karnataka High Court
Smt Shweta W/O Avinash Desai vs Ainash Desai S/O Rajanikant Desai on 14 February, 2025
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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NC: 2025:KHC-D:3044-DB
MFA No. 102613 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 102613 OF 2023 (MC)
BETWEEN:
SMT SHWETA W/O. AVINASH DESAI,
AGE:37 YEARS OCC: PROGRAM MANAGER,
AT GERMANY, R/O. 3510, BAAD, PATNIKERI
NANDANGADA, KARWAR-583212
- APPELLANT
(BY SRI. R. H. ANGADI, ADVOCATE)
AND:
AVINASH DESAI S/O. RAJANIKANT DESAI,
AGE: 39 YEARS, OCC: NIL, R/O: 729/S,
25/9TH CROSS, 9TH MAIN, 2ND STAGE,
HEBBAL, MYSORE, PRESENTLY R/O: DESAI WADA
NEAR SHIVANATH TEMPLE,
MOODAGERI, KARWAR-583 212.
- RESPONDENT
(BY SRI. M. C. HUKKERI, ADVOCATE FOR
Digitally SRI. VENKATESH M. KHARVI, ADVOCATE)
signed by
SHAKAMBARI
THIS MISCELLENAOUS FIRST APPEAL FILED UNDER
Location: High
Court of SECTION 28(1) OF THE HINDU MARRIAGE ACT. PRAYING TO,
Karnataka,
Dharwad SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED
Bench
15.04.2023 PASSED IN MC.NO.24/2020 BY THE ADDL. SENIOR
CIVIL JUDGE, KARWAR AND CONSEQUENTLY ALLOW THE
PETITION FILED BY APPELLANT UNDER SECTION 13(1) (IA) OF
HINDU MARRIAGE ACT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE JUDGMENT THEREIN AS UNDER:
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NC: 2025:KHC-D:3044-DB
MFA No. 102613 of 2023
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD)
This appeal is as against the dismissal of the
petition by the appellant under Section 13[1][i-a] of the
Hindu Marriage Act,1955, in M.C.No.24/2020 on the file of
the Additional Senior Civil Judge, Karwar [ for short, "the
Family Court"]. The appellant's petition is dismissed by the
impugned order dated 15.04.2023.
2. On 24.01.2025, both Sri. R.H.Angadi, the
learned counsel for the appellant, and Sri.Venkatesh N.
Kharvi, the learned counsel for the respondent, were
categorical that it could be that both the appellant and the
respondent would file appropriate affidavits under Section
13B of the Hindu Marriage Act, 1955 essentially stating that
the appellant and the respondent will withdraw all
allegations against each other and the marriage could be
dissolved by mutual consent without any claim against the
other.
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3. Presently, the respondent, who resides in
Sydney, Australia, has sworn to an affidavit. It is stated on
his behalf that a copy of the affidavit, which is authenticated
by a Notary Public in Australia, has been sent by Email and
the original is sent by courier but is yet to be received. As
per the copy of the respondent's affidavit now placed on
record, he is making a request with this Court for grant of
divorce [though referred to as separation] with liberty to him
and to the appellant to lead independent future life. The
respondent has also stated that he has sworn to an affidavit
because he has difficulty in travelling to India in light of the
fact that he has travelled repeatedly within a short span.
4. The appellant is present in person, and
when queried, she states that she is presently residing in
Germany and that she also agrees to the mutual divorce
withdrawing all allegations and without any claim against
the respondent. The appellant has sworn to an affidavit
stating the same but in support of an application under
Order XXIII Rule 3 of CPC. This application and affidavit are
taken on record. The appellant has reiterated that the
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marriage is irretrievably broken down and she and the
respondent have agreed for divorce by mutual consent.
5. It emerges from the above that the
appellant and the respondent, who were married on
03.02.2014 and who have lived initially in Australia, have
separated, have been living separately for over four [4] years
and they have now agreed for dissolution of marriage
without claim. It is also obvious from terms now mentioned
that all the requirements for dissolution of marriage by
mutual consent under Section 13B are satisfied. This Court
must next observe that the provision of Section 13B [2]
contemplates six [6] months for dissolution from the date of
the application for divorce by mutual consent, but in view of
the fact that the appellant and the respondent have been
living separately across continents for over four [4] years and
neither lives in India and that the appellant has travelled
today only for the present proceedings, circumstances are
brought out to waive this period of six [6] months. In the
light of the afore, the following :
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ORDER
i. The appeal is disposed of dissolving the
marriage between the appellant and the
respondent solemnized on 03.02.2014
at Sadichcha Hall, Sadashivgad,
Karwar by mutual consent as is
contemplated under Section 13B of the
Hindu Marriage Act, 1955 without any
claim as against the other.
ii. The learned counsel on record for the
respondent will be at liberty to file the
original of the respondent's affidavit [a
copy of which is now received] with the
Registry within a week from today.
iii. The Office is directed to draw a decree
of divorce as aforesaid.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
AM/CT:VG
