Karnataka High Court
Dr Sakshi Alias Aliyas Jyoti W/O ... vs Shri Shadaxari S/O Vijaykumar ... on 29 October, 2025
Author: S G Pandit
Bench: S G Pandit
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MFA No.103063/2025
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 29TH DAY OF OCTOBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
MISCELLANEOUS FIRST APPEAL NO.103063 OF 2025 (FC)
BETWEEN:
DR. SAKSHI @ JYOTI,
W/O. SHADAXARI MENASINKAI,
BEFORE MARRIAGE:
JYOTI D/O MALLIKARJU ALAVANDI
AGE: 44 YEARS, OCC. GOVT. SCHOOL TEACHER,
R/AT: RAJIV GANDHI NAGAR,
DIST. GADAG-582201.
...APPELLANT
(BY SRI. GOURISHANKAR H.MOT, ADVOCATE)
AND:
SHRI SHADAXARI,
S/O. VIJAYKUMAR MENASINKAI,
AGE: 50 YEARS, OCC. ADVOCATE,
Digitally
VISHAL
signed by
VISHAL
NINGAPPA
PATTIHAL
R/AT: GADAG,
NINGAPPA Location:
PATTIHAL HIGH
COURT OF
KARNATAKA
DHARWAD
DIST. GADAG-581404.
BENCH
...RESPONDENT
(SRI. SHADAXARI - PARTY IN-PERSON)
THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY
COURT ACT, PRAYING TO SET ASIDE THE EX-PARTE JUDGMENT
AND DECREE DATED 12.06.2025 PASSED BY THE HON'BLE
PRINCIPAL JUDGE FAMILY COURT, AT GADAG IN MC NO.189/2024
AND MAY BE PLEASED TO DISMISS THE DIVORCE PETITION FILED
BY THE PETITIONER/RESPONDENT (HUSBAND) BY ALLOWING THIS
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY & ETC.
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MFA No.103063/2025
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
16.10.2025 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, S G PANDIT J., 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 MR. JUSTICE S G PANDIT)
The appellant, wife of the respondent herein, is in appeal
under Section 19(1) of the Family Courts Act, 1984 assailing the
judgment and decree dated 12.06.2025 passed in
M.C.No.189/2024 by the Principal Judge, Family Court, Gadag
(for short, 'the Family Court'), dissolving marriage of the
appellant and the respondent on the ground of desertion under
Section 13(1)(ib) of the Hindu Marriage Act, 1955 (for short, 'the
1955 Act').
2. Brief facts of the case are that the appellant and the
respondent are wife and husband, their marriage having been
solemnised on 25.05.2003 at Kadakol Village, Savanur Taluk of
Haveri District. It is stated that from the wedlock, they have two
children namely, Tejaswini, aged 20 years, and Kushi aged 14
years. The respondent-husband filed a petition in M.C.
No.189/2024 under Sections 13(1)(ia) and 13(1)(ib) of the 1955
Act seeking dissolution of marriage between the appellant and
the respondent. In the said petition, it was stated that
respondent left the house of the petitioner with kids without
informing the petitioner and she filed Crl.Misc. No.170/2022
before the Court of JMFC-I, Gadag under Section 12 of the
Domestic Violence Act, 2005, and also a petition under Section
125 of the Code of Criminal Procedure, 1973. The petition
averments would indicate that, as on the date of filing of the
petition for dissolution of marriage, the appellant and the
respondent were residing separately for the past three years and
it is also alleged that the wife deserted the petitioner. It was also
stated that the petitioner-husband was ready to take back the
children.
3. On issuance of notice, the wife appeared before the
Court and filed her objections admitting relationship with the
petitioner-husband and also of having two female children. In
the objection, it was stated that she came to know after the
marriage that her husband was a drunkard and was in the habit
of making allegations against others. She tolerated the physical
and mental ill-treatment of her husband. It was stated that she
had completed her Ph.D., and was appointed as a teacher. It is
alleged that the petitioner-husband used to take away all the
salary of the respondent-wife. It was also stated that on
14.09.2021, the petitioner-husband ousted the respondent with
her two children as she had refused to transfer the property in
the name of the petitioner which was jointly purchased by the
petitioner and the respondent. It was also stated that the
respondent-wife filed Crl.Misc. No.226/2023 seeking
maintenance.
4. Petitioner-husband examined himself as P.W.1 and
no documents were marked on his behalf. The respondent-wife
did not lead any oral evidence or documentary evidence.
Thereafter, the impugned judgment came to be passed by the
Family Court rejecting the petition filed under Section 13(1)(ia)
and allowing the petitioner under Section 13(1)(ib) of the 1955
Act dissolving the marriage of the petitioner and the respondent.
5. Questioning the said judgment and decree of the
Family Court, the appellant-wife is before this Court in this
appeal.
6. Heard Sri. Gourishankar H. Mot, learned counsel for
the appellant, and the respondent-husband (party-in person).
Perused the entire appeal papers including the certified copies of
the order sheet placed on record along with memo dated
10.10.2025 filed by the learned counsel for the appellant.
7. The learned counsel for the appellant would submit
that, apart from not providing an opportunity to the appellant-
wife to lead her evidence and to cross-examine the respondent-
husband, there is no material whatsoever on record except the
self-serving statement of P.W.1 (husband) to prove desertion on
the part of the appellant-wife. Learned counsel would submit that
the Trial Judge committed an error in dissolving the marriage on
the ground of desertion holding that the appellant-wife left the
petitioner for more than two years immediately preceding the
date filing of the present petition. To grant dissolution of
marriage on the ground of desertion, it would be necessary for
the Court to record intentional and permanent
forsaking/abandonment of one spouse by the other without
reasonable cause. He submits that when it is the case of the
wife, as per her statement of objections, that she was dragged
out of the matrimonial home, without there being any evidence
on record except the self-serving statement of P.W.1 (husband),
the Family Court could not have granted dissolution of marriage
on the ground of desertion.
8. Learned counsel for the appellant, without prejudice
to the above contentions, would submit that the Family Court
failed to provide proper opportunity to the appellant-wife to lead
her evidence and also to cross-examine P.W.1. Learned counsel
would point out from the order sheet that the petitioner-husband
filed I.A. No.2 for production of 16 documents and the same was
taken on record on 18.02.2025; that on behalf of the appellant-
wife, on 28.02.2025, I.A. No.3 was filed to reopen the case from
the stage of plaintiff's evidence and I.A. No.4 to permit to file
objections to I.A. No.2; on the said date, the matter was
adjourned to 10.03.2025; that on 10.03.2025, the husband
(party in-person) filed objections to I.As. 3 and 4, and the case
was adjourned to 22.03.2025; on 04.04.2025, I.A. Nos.3 and 4
filed by the appellant-wife were allowed. The appellant-wife could
not be present on 22.04.2025 and hence, on the said date, the
cross-examination of P.W.1 was taken as 'nil' and the case was
posted to 25.04.2025. On 25.04.2025, the advocate on behalf of
the appellant-wife sought time for leading the evidence of wife,
but the Court rejected the same and proceeded to hear the
arguments. Thus, the learned counsel would submit that the
appellant-wife had no opportunity to lead her evidence and
cross-examine P.W.1, and therefore, would pray for an
opportunity to lead her evidence and also to cross-examine
P.W.1. Hence, learned counsel for the appellant prays for
remanding the matter to the Family Court.
9. On the other hand, respondent-husband (party in-
person) has filed written arguments by way of arguments and
has contended that in the proceedings before the Family Court,
out of 22 occasions, only on six occasion the appellant was
present before the Family Court. Further, he submits that
sufficient opportunity was given to the appellant-wife to lead her
evidence and also to cross-examine P.W.1 but the appellant-wife
failed to utilise the said opportunity. It is submitted that having
failed to utilise the opportunity, the appellant-wife cannot seek
for further opportunity. Respondent (party in-person), would
submit that, as stated in her objection statement, the wife left
the matrimonial home on 14.09.2021 and as such, the Family
Court is justified in dissolving the marriage on the ground of
desertion. Party in-person would submit that the case of the
appellant-wife has no basis. Thus, he prays for dismissal of the
appeal.
10. Having heard the learned counsel for the appellant
and the respondent (party in-person), the only point which falls
for consideration is:
Whether the judgment under appeal requires
interference at the hands of this Court?
11. The answer to the above point would be in the
affirmative for the following reasons:
(a) The marriage of the appellant and respondent solemnised
on 25.05.2003 and two children born from the wedlock is
not in dispute. It is also an admitted fact that several
litigations are pending between the appellant-wife and the
respondent-husband. The respondent-husband filed a
petition in M.C. No.189/2024 under Sections 13(1)(ia) and
(ib) of the 1955 Act seeking dissolution of marriage on the
ground of cruelty and desertion.
(b) The Trial Court placed reliance on the decision of Hon'ble
Supreme Court in the case of Savitri Pandey v. Prem
Chandra Pandey1, to accept the ground of desertion pressed
into service by the respondent-husband. The respondent-
husband examined himself as P.W.1, and except his self-
serving statement, no other oral or documentary evidence
were available on record. The Family Court only on the basis
of the self-serving statement of P.W.1, in the absence of
any other corroborative evidence, could not have granted
dissolution of marriage on the ground of desertion. The
Family Court observes that the wife left the husband for
more than two years preceding the date of filing the
petition. The appellant-wife in her objection had
categorically stated that the respondent-husband ousted her
with her two children on 14.09.2021 and when that being
the specific averment of the appellant-wife, the Family
Court could not have believed the self-serving statement of
P.W.1. The decision of the Hon'ble Supreme Court in Savitri
Pandey's case (supra), makes it abundantly clear that to
accept the ground of desertion, the wife or husband, who
pleads desertion, must prove that desertion of the petitioner
by other spouse was without consent and without
reasonable cause and that desertion must be intentional. It
(2002) 2 SCC 73
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is also to be noted that if a spouse abandons the other in a
state of anger or disgust without any intention to
permanently cease cohabitation, it will not amount to
desertion. When the respondent-husband has failed to
prove that the appellant-wife has deserted him
intentionally, permanently without reasonable cause, the
Family Court committed a grave error in dissolving the
marriage on the ground of desertion.
(c) The next question would be, whether the appellant-wife is
to be given an opportunity to lead her evidence and also to
cross-examine P.W.1.
(d) The judgment under appeal is in the nature of an ex parte
judgment. Dissolution of marriage would lead to severe
consequences, both on the wife as well as on the children.
Therefore, a proper opportunity requires to be afforded to
the parties before passing the judgment of dissolution of
marriage. On 22.04.2025, when the case was listed for
cross-examination of P.W.1, the appellant-wife and her
counsel were absent and on the said date, the cross-
examination of P.W.1 was taken as 'nil' and the case was
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posted for respondent's evidence on 25.04.2025. On
25.04.2025, when the counsel for the appellant-wife sought
for time to lead evidence, the Trial Court refused to grant
time and proceeded to hear the arguments of the
respondent-husband. In the instant case, though there is a
little negligence on the part of the appellant-wife in
participating in the proceeding before the Family Court, the
same cannot be a reason to deny grant of further
opportunity to the appellant-wife to lead her evidence and
to cross-examine P.W.1. On examination of overall factual
situation and on examination of the entire ordersheet of the
proceedings in M.C. No.189/2024 before the Family Court,
we are of the considered opinion that the appellant-wife
needs to be given an opportunity to lead her evidence and
also to cross-examine P.W.1.
12. In the light of the above, we pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 12.06.2025
passed in M.C. No.189/2024 by the Principal
Judge, Family Court, Gadag, is hereby set aside,
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and the matter is remanded the Family Court for
fresh consideration.
iii) The Family Court, Gadag, shall provide
opportunity to both the appellant and the
respondent i.e., the wife and husband to lead
evidence and to cross-examine each other.
iv) Parties shall appear before the Family Court at
Gadag on 21.11.2025 at 11.00 a.m. to
participate in the further proceedings without
awaiting further notice from the Family Court.
Sd/-
(S G PANDIT)
JUDGE
Sd/-
(GEETHA K.B.)
JUDGE
KMS
CT-VP
