IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No.3360/2019 (FC) BETWEEN:
SMT. M. DEEPA KUMARI W/O SRI. N. SRINIVASA MURTHY @ JAYA SRINIVASA AGED ABOUT 30 YEARS R/O. No.454/3, 4TH MAIN ROAD 2ND CROSS, VIJAYANANDA NAGARA NANDINI LAYOUT, BANGALORE-560096.
(BY SMT. APARNA L.V. ADVOCATE) AND:
SRI. N. SRINIVASA MURTHY @ JAYA SRINIVASA S/O NARASIMHULU G AGED ABOUT 38 YEARS R/O. No.94/3, 6TH MAIN ROAD PIPELINE WEST KASTHURIBA NAGARA MYSORE ROAD, BANGALORE-560026.
... APPELLANT ... RESPONDENT (BY SRI. N. RAVINDRANATH KAMATH, ADVOCATE) ***** THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 6.7.2018, PASSED IN MC No.2351/2016, ON THE FILE OF THE V ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 10 B OF HINDU MARRIAGE ACT, 1955.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Learned counsel for appellant submits that there is a formal and serious defect in M.C.No.2351/2016 filed by the respondent – husband despite that the trial Court has entertained the petition on merits and has passed a contradictory order and therefore, the impugned judgment and decree may be set aside.
2. By way of response, learned counsel for respondent acknowledges the defect in the petition filed in M.C.No.2351/2016 and submits that permission may be granted to the respondent to withdraw the said petition with liberty to the respondent to file a fresh petition under the provisions of the Hindu Marriage Act, 1955 [hereinafter, referred to as “the Act”, for brevity] or to reserve liberty to the parties to file a petition under Section 13B(1) of he Act.
3. Learned counsel for appellant submits that the appellant has a right to file a petition under Section 13B (1) of the Act, if the respondent is willing to do so, to which, learned counsel for respondent submits that the respondent is also willing to file such a petition. Submission of learned counsel for respective parties made in presence of the parties is placed on record.
4. It is noted that M.C.No.2351/2016 is filed under Section 10 B of the Act, seeking a decree of judicial separation by dissolution of marriage celebrated between the parties. The operative portion of the judgment reads as under:-
“Petition filed by the petitioner U/Sec.10 B of Hindu Marriage Act, 1955 is hereby allowed.
Decree of judicial separation is granted to the petitioner by dissolving his marriage with the respondent held and solemnized on 20.4.2014 at Sri Markandeshwara Swamy Temple, Prarthana Mandira, Opp to Balekayi Mandi, Behind Bharath Petrol Bunk, Binny Mill Road, Markandeshwara Nagar, Bengaluru – 560 023.
Draw decree accordingly.”
5. The aforesaid decree is wholly incongruous to the Act. In the circumstances, appeal is disposed of. Respondent is permitted to withdraw M.C.No.2351/2016.
Consequently, impugned judgment and decree dated 06/07/2018 passed by the V Addl. Prl. Judge, Family Court at Bengaluru, in M.C.No.2351/2016 is set aside.
6. The parties are at liberty to file a petition under Section 13B(1) of the Act, if so advised. They are also at liberty to file an application under Section 13B(2) of the Act. It is needless to observe that if such an application is filed, the Family Court concerned shall consider the same in accordance with law, by bearing in mind the observations of the Hon’ble Supreme Court in case of Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746] and in accordance with law.
In view of withdrawal of the appeal with the aforesaid liberty, pending applications stand withdrawn.
Sd/- JUDGE Sd/- JUDGE *mvs