IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 7TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE S. G. PANDIT MISCELLANEOUS FIRST APPEAL NO.1812 OF 2019 (SMA) BETWEEN 1. MR. PRITHWISH BHATTACHARYA SON OF LATE MR. PRADIP BATTACHARYA AGED ABOUT 34 YEARS RESIDING AT FLAT B-117 SVS PATELS CALLISTO APARTMENT TALACAUVERY LAYOUT B.B. ROAD AMRUTHAHALLI, SAHAKARANAGAR P.O., BENGALURU-560 092.
2. MRS. ISHA BATTACHARYA WIFE OF MR. PRITHWISH BATTACHARYA AGED ABOUT 26 YEARS RESIDING AT FLAT NO.502 PREMIER HEIGHTS APARTMENT SYNDICATE CIRCLE HAYAGREEVA NAGAR, UDUPI MANIPAL-576 104.
... APPELLANTS (BY MISS:PAVINA LALLA, ADVOCATE) AND:
NIL.
... RESPONDENT THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 39 OF THE SPECIAL MARRIAGE ACT, 1954 READ WITH SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 08.01.2019 PASSED IN MC NO.6305 OF 2018 ON THE FILE OF THE IV ADDITIONAL PRINCIPAL FAMILY COURT JUDGE, BENGALURU, RETURNING THE PETITION TO THE PARTIES AS PREMATURE CONSEQUENTLY, REJECTING IA NO.3 FILED UNDER SECTION 28(2) OF SPECIAL MARRIAGE ACT.
***** THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the order dated 08.01.2019 passed in M.C.No.6305 of 2018 on the file of the IV Additional Principal Judge, Family Court, Bengaluru.
2. In terms of the said order, the petition filed by the appellants herein was dismissed as being pre mature and returned to the parties. The same is sought to be questioned herein.
3. The learned Counsel for the appellants submits that even though the parties were living under the same roof, they were leading separate lives without any conjugal relations.
4. On hearing appellants’ Counsel, we are of the view that the appellants is entitled for the relief sought for. The averments in the petition filed by the appellants under Section 28 of the Special Marriage Act depicts that though they were residing under the same roof, they were living as strangers, leading separate lives since 2015 without any conjugal relations between them. Therefore, they sought for a judgment and decree to dissolve their marriage. The trial Court on considering the plea of the parties was of the view that they were living together under a same roof until May 2018. Hence, dismissed the petition as being pre mature.
5. The Hon’ble Supreme Court in the case of SURESHTA DEVI Vs OM PRAKASH in Civil Appeal No.633 of 1991 decided on 07.02.1991, held at para 8 as “living separately for a period of one year connotes like not living like husband and wife. That even though they are living under the same roof, they may not be living as husband and wife and they were not having any conjugal relationship”. Therefore, the order passed by the Trial Court is erroneous.
6. Consequently, the appeal is allowed. The order dated 08.01.2019 passed in M.C.No.6305 of 2018 on the file of IV Additional Principal Judge, Family Court, Bengaluru, is set aside. The matter is remanded to the Family Court to pass an appropriate order in view of the aforesaid observations.
Sd/- Sd/-
JUDGE JUDGE *bgn/-