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Case Number
Disposition

allowed

Attorney(S)
  • B M SIDDAPPA
  • PATEL D KAREGOWDA
Judges
  • Hon'ble Shri. Justice Savanur Vishwajith Shetty
Acts
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Disposition

allowed

Attorney(S)
  • B M SIDDAPPA
  • PATEL D KAREGOWDA
Judges
  • Hon'ble Shri. Justice Savanur Vishwajith Shetty
Acts
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Smart Summary

Factual and Procedural Background

The marriage between the appellant, Smt. Pavithra @ Ambika, and the respondent, Sri J. Joganna, was solemnized on 09.12.2012 at Kasavanahally village, Hiriyur Taluk. The respondent-husband filed a petition under Section 13(1) of the Hindu Marriage Act on 20.01.2014 seeking dissolution of the marriage on the ground of desertion by the appellant. The Senior Civil Judge at Hiriyur allowed the petition by judgment and decree dated 11.02.2015, dissolving the marriage. The appellant filed this miscellaneous first appeal under Section 28(1) of the Hindu Marriage Act against that order.

Legal Issues Presented

  1. Whether the petition for divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act was maintainable when filed before the completion of two continuous years of desertion immediately preceding the presentation of the petition.
  2. Whether the Trial Court erred in granting a decree of divorce despite the petition being filed before the mandatory two-year desertion period had elapsed.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court analyzed the statutory requirement under Section 13(1)(ib) of the Hindu Marriage Act, which mandates that desertion must be continuous for not less than two years immediately preceding the presentation of the petition for divorce. The Court noted that the marriage took place on 09.12.2012, but the petition was filed on 20.01.2014, which was before the completion of the two-year desertion period. The Trial Court failed to consider this essential requirement and proceeded to grant the decree of divorce. Consequently, the impugned judgment and decree were found to be in violation of the statutory mandate and were therefore unsustainable in law.

Holding and Implications

The appeal is allowed and the impugned judgment and decree dated 11.02.2015 are set aside.

This decision directly nullifies the Trial Court's decree of divorce on the ground of desertion filed prematurely before the statutory period elapsed. No broader precedent was established beyond the immediate effect on the parties, reinstating the legal requirement of a continuous two-year desertion period before a divorce petition under Section 13(1)(ib) can be entertained.

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    SMT PAVITHRA @ AMBIKA v. SRI J JOGANNA

    1

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 29THDAY OF MARCH, 2022

    PRESENT

    THE HON'BLE MR. JUSTICE ALOK ARADHE

    AND

    THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

    M.F.A.No.1958/2015

    BETWEEN:

    SMT. PAVITHRA @ AMBIKA W/O.J.JOGANNA,

    D/O.OBALAGIRIYAPPA,

    AGED ABOUT 23 YEARS,

    R/O.KASAVANAHALLY VILLAGE, HIRIYUR TALUK-571311, CHITRADURGA DISTRICT. …APPELLANT (By Sri B.M.Siddappa, Adv.)

    AND:

    SRI J. JOGANNA

    S/O GURUSIDDANAYAKA,

    AGED ABOUT 29 YEARS,

    R/O.K.M.KOTTIGE, HIRIYUR TALUK-571311, CHITRADURGA DISTRICT. … RESPONDENT (By Sri Patel. D. Karegowda, Adv.)

    This M.F.A. is filed under Section 28(1) of the Hindu Marriage Act, against the judgment and decree dated 11.02.2015 passed on MC No.2/2014 on the file of the Senior

    1

    Civil Judge at Hiriyur, allowing the petition filed u/s 13(1) of Hindu Marriage Act.

    This appeal coming on for Final Hearing, this day, Alok Aradhe J., delivered the following:

    JUDGMENT

    1. This miscellaneous first appeal under Section 28 of the Hindu Marriage Act, 1955 (for short, 'the Act') has been filed against the order dated 11.02.2015 passed by the Trial Court, by which the petition filed by the respondent under Section 13(1) of the Act has been allowed and the marriage between the parties has been dissolved by a decree of divorce on the ground of desertion.

    2. Facts giving raise to the filing of this appeal briefly stated are that the marriage between the parties was solemnized on 09.12.2012 at Kasavanahally village, Hiriyur Taluk. The respondent-husband filed the petition on 20.01.2014 seeking dissolution of marriage on the ground that the appellant has deserted the respondent. The Trial Court by order dated 11.02.2015 has allowed the petition filed by the respondent.

    2

    3. We have heard the learned Counsel for the parties at length.

    4. The relevant extract of Section 13 of the Act reads as under:

    "13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

    (i) xxx xxx (ia) xxx xxx (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

    (ii xxx xxx"

    5. Thus, it is evident that in order to seek the decree of divorce under Section 13(1)(ib) of the Act, the husband/wife should have deserted continuously for a period of two years immediately preceding the date of presentation of the petition.

    3

    6. In the instant case, the marriage was performed between the parties on 09.12.2012. However, even before the expiry of the period of two years from the date of marriage, the petition seeking dissolution of marriage was filed on 20.01.2014 on the ground of desertion under Section 13(1)(ib) of the Act. The Trial Court has failed to appreciate the aforesaid aspect of the matter. The impugned judgment and decree has been therefore passed in violation of the mandate contained under Section 13(1)(ib) of the Act. The same, therefore, cannot be sustained in the eye of law. The impugned judgment and decree dated 11.02.2015 is accordingly set aside.

    In the result, the appeal is allowed.

    Sd/-

    JUDGE

    Sd/-

    JUDGE

    KK

    4

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    Comments

    SMT PAVITHRA @ AMBIKA v. SRI J JOGANNA
    (Mar 29, 2022)