IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE B M SHYAM PRASAD WRIT PETITION NO.56060 OF 2018 (GM - FC) BETWEEN 1. DR. PURUSHOTHAM KRISHNAPPA S/O. S. KRISHNAPPA, AGED ABOUT 40 YEARS, RESIDING AT NO. 24, 4TH CROSS, BASAVESHWARA LAYOUT, NAGASHETTYHALLI, BENGALURU-560 094.
2. DR. SOWMYA RAMAKRISHNAPPA W/O. DR. PURUSHOTHAM KRISHNAPPA, AGED ABOUT 35 YEARS, RESIDING AT NO. 11/1, 15TH CROSS, 25TH MAIN, BTM II STAGE, BENGALURU-560 076. ... PETITIONERS (BY SRI NIKHIL D KAMATH, ADVOCATE) AND -NIL- ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUION OF INDIA PRAYING TO QUASH THE IMPUGND ORDER DTD:20.11.2018 PASSED BY THE VI ADDITIONAL FAMILY COURT AT BENGALURU ON IA NO.II IN M.C.NO.5679/2018 WHICH IS PRODUCED AND MARKED AS ANNEXURE-A TO THE WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners, who are husband and wife have filed this petition together, being aggrieved by the order dated 20.11.2018 in MC No.5679/2018 on the file of the VI Additional Principal Judge, Family Court, Bengaluru - (for short, ‘learned Family Court’) rejecting the application filed by the petitioners for waiver of the statutory period of six months under Section 13B of the Hindu Marriage Act, 1955.
2. The petitioners have filed the petition in M.C.No.5679/2018 under Section 13B of the Hindu Marriage Act, 1955 stating that their marriage was solemnized on 26.11.2009 and they have a girl - child aged about 6 years. The petitioners are both presently working in Malaysia. They have not been able to settle their differences despite repeated interventions by elders, friends and acquaintance. Their marriage is irretrievably broken down. The statutory period of six months as required under Section 13B(2) of the Hindu Marriage Act, 1955 would not serve any purpose, and would only continue the agony and hardship not only to them but also to the minor child because of the fact that all of them are residing outside India. They further contended that they have complied with all the conditions as would be required in terms of the decision of the Hon’ble Supreme Court in the case of Amardeep Singh v/s Harveen Kaur in CA No.11158 of 2017.
3. However, the Family Court, by the impugned order, has rejected this application on the ground that the petitioners have not filed any proof of the Mediation/Conciliation efforts undertaken as required in law inter alia under Section 9 of the Family Courts Act, 1984.
4. Perused the petition in M.C.No.5679/2018 filed under Section 13B of the Hindu Marriage Act, 1955 and the affidavit as well as other papers.
5. The petitioners are educated and in fact, petitioner No.1 is working as an Associate Professor and petitioner No.2 is working as Lecturer, in Foreign Universities. They have been living abroad. They categorically state that the Mediation/Conciliation efforts by the family members, elders, friends and acquaintance have been futile. It is indeed undeniable that the parties will have to make all efforts for the conciliation including efforts under Section 9 of the Family Courts Act. The appropriate course of action, given facts and circumstances of the case, would have been to refer the parties to Conciliation as contemplated under Section 9 of the Family Courts Act, 1984 and then consider the application for waiver of statutory period of six months instead of rejecting the application on the ground that the conciliation efforts have not been established. This course of action would not only be necessary under section 9 of the Family Courts Act, 1984 but would also have enabled the learned Family Court to ascertain whether requisite conditions, as required by the decisions of the Hon’ble Apex Court, are complied with. Therefore, the impugned order is set- aside and the following :-
ORDER a) the petitioners are directed to appear before the learned Family Court on 09.01.2019 and make a request for reference of the petition for Conciliation under Section 9 of the Family Courts Act as a part of an endeavour of the learned Family Court.
b) the learned Family Court, after securing reports from the Conciliating Officer/Mediator under Section 9 of the Family Courts Act 1984, shall consider the application for waiver of the statutory period of six months along with main petition.
SD/- JUDGE PYR