Karnataka High Court
Smt H P Akshatha vs Sri B Siddappaji Swamy on 8 January, 2025
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MFA No.2110/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL No.2110/2023 (MC)
BETWEEN:
SMT.H.P.AKSHATHA
W/O B. SIDDAPPAJI SWAMY
D/O PUTTASWAMY
AGED ABOUT 30 YEARS
R/AT NO.1791, 5TH CROSS
HOSAHALLI VILLAGE
VINAYAKA TENT ROAD
NEAR BASAVANAGUDI, MANDYA CITY
MANDYA DISTRICT -571 401 ...APPELLANT
(BY SRI HARIPRASAD M B, ADVOCATE)
AND:
SRI B SIDDAPPAJI SWAMY
S/O LATE BORAIAH
Digitally AGED ABOUT 40 YEARS
signed by K S
RENUKAMBA EMPLOYEE IN PVT. CONCERN
R/AT NO.557, 5TH SITE
Location: BHARATHI COLONY
High Court of
KALAMUDDANA DODDI VILLAGE
Karnataka
MADDUR TALUK
MANDYA DISTRICT - 571 401 ...RESPONDENT
(NOTICE HELD SUFFICIENT VIDE COURT ORDER DATED 19.07.2023)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 28(1) OF HINDU MARRIAGE ACT, 1955 PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 18.02.2022 PASSED IN
M.C.NO.88/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MADDUR ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ib)
OF THE HINDU MARRIAGE ACT, 1955.
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MFA No.2110/2023
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)
Challenging the exparte decree of divorce passed against
her, the respondent in M.C.No.88/2021 on the file of the Senior
Civil Judge, Maddur has preferred this appeal.
2. The marriage of the appellant and the respondent
was solemnized on 12.02.2016 at Benaka Samudaya Bhavana,
Guthalu Road, Mandya City. The parties are Hindus and
governed by the Hindu Marriage Act, 1955 (for short 'the Act').
3. The respondent filed M.C.No.88/2021 before the
Trial Court seeking decree of dissolution of marriage under
Section 13(1)(ib) of the Act alleging that the appellant has
willfully deserted him since four to five years prior to filing of
the petition. Despite his attempts, she did not join him. He
contended that she is guilty of willful desertion and he is
entitled for decree of divorce on the said ground.
4. Trial Court records show that the notice issued in
the said case to the present appellant was returned with
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endorsement 'unclaimed'. Trial Court placed her exparte
recorded the evidence of the respondent and his witness as
PWs.1 and 2. Respondent got marked Exs.P1 to P3 i.e.
marriage invitation card, CD and copies of whatsapp
respectively.
5. Trial Court on hearing the present
respondent/husband, by the impugned judgment and decree
held that the respondent's evidence has gone unrebutted.
Based on such evidence, the Trial Court granted decree of
dissolution of marriage.
6. The records show that the notice of appeal issued
to the respondent/husband was returned with endorsement
that he has refused the notice. He has not turned up to contest
the appeal.
7. Sri Hariprasad M.B, learned Counsel for the
appellant reiterating the grounds of appeal submits that the
respondent himself was abusive and it was the respondent who
threw the appellant out of the matrimonial home. He further
submits that the respondent furnished wrong address and has
managed to get exparte decree, playing fraud on the appellant.
Therefore the decree is liable to be set aside.
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8. Before this Court the appellant has filed
I.A.No.1/2024 under Section 25 of the Act seeking permanent
alimony of Rs.40,00,000/- from the respondent.
9. On hearing the appellant and on examining the
material on record, the point that arises for consideration is
"whether the impugned judgment and decree is sustainable?"
Analysis
10. There is no dispute that the appellant and the
respondent were Hindus and they married on 12.02.2016 in
Mandya City. It is also not disputed that presently the appellant
and the respondent are living separately. The records further
show that the notice of the petition issued by the Trial Court
was returned with endorsement 'unclaimed'. The respondent
himself contended before the Trial Court that the present
appellant is living separately. In the petition he had furnished
the following address:
"H.P.Akshatha
W/o.B.Siddappaji Swamy
S/o. Puttaswamy
Aged about 27 years
R/o No.1791, 5th Cross
Hosahalli village, Mandya
Ward No.16, Kasaba Hobli,
Mandya Taluk and District"
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11. Learned Counsel for the appellant submits before
this Court the copy of aadhar card of the appellant wherein her
address is shown, as resident of 5th Cross, Hosahalli, Mandya.
The respondent has not turned up to dispute the allegation that
the particulars furnished in the cause title of the divorce
petition and the one shown in the aadhar card of the appellant
and the appeal memo are different. The respondent himself in
the divorce petition contended that the appellant had filed
police complaint against him. The couple were married for five
years. Under the circumstances, throwing her out of the
marriage without hearing her is unfair and unjust. Therefore, it
is a fit case to set aside the judgment and decree and remit the
matter to the Trial Court for adjudication on giving opportunity
of hearing to both parties.
12. Since the impugned judgment and decree has to be
set aside, the question of granting permanent alimony during
subsistence of marriage does not arise. If at all the appellant
wants to seek any interim alimony, it is open to her to raise
such claim before the Trial Court. For the aforesaid reasons,
the Court passes the following:
ORDER
The appeal is allowed.
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The impugned judgment and decree of divorce dated
18.02.2022 in M.C.No.88/2021 passed by the Senior Civil
Judge, Maddur is hereby set aside.
The matter is remanded to the Trial Court for fresh
consideration on giving opportunity of hearing to both the
parties.
To avoid further delay, the appellant is hereby directed to
appear before the Trial Court on 03.02.2025 without any
further notice. She shall file her statement of objections to the
petition on the date of her appearance.
The Trial Court shall issue notice to the
respondent/husband to the address shown by him in the cause
title of the petition and then proceed in accordance with law.
In view of disposal of the appeal, pending IAs stood
disposed of.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
KSR
