IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD M.F.A. NO.1890/2019 (FC) BETWEEN:
1. SRI M. ASHWIN KUMAR AGED ABOUT 38 YEARS, S/O. C. MAHADEVAN, R/AT ADHIKARI KALAM KOTTIYODE ROAD, MANNARKKAD, PALAKKAD, KERALA STATE – 678 582.
2. SMT. CHANDRAKALA AGED ABOUT 22 YEARS, W/O. M. ASHWIN KUMAR D/O. SIDDESH SHIVANNA, R/A NO.9, 1ST A CROSS, MATHURANAGAR, METAGALLI, MYSURU – 570 016. ... APPELLANTS (BY SRI NANDA KUMAR P., ADVOCATE) AND:
NIL ... RESPONDENT ***** THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, 1984, AGAINST THE JUDGMENT AND DECREE DATED 16.08.2018 PASSED IN M.C.NO.709/2017 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT MYSURU, DISMISSING THE PETITION FILED U/S 13-B OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:
J U D G M E N T Though there is a delay of 92 days in filing the appeal, we have nevertheless heard learned counsel for the appellants.
2. Appellants are husband and wife. They have filed this appeal being aggrieved by the dismissal of their petition filed under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for the sake of brevity) in M.C.No.709/2017 by the II Addl. Prl. Family Court, Mysuru.
3. Learned counsel for the appellants submits that the appellants were married on 14/09/2016. That they were living separately since March 2017 and the petition was filed on 29/11/2017. That the said petition is one for dissolution of marriage by mutual consent. That Family Court at Mysuru has dismissed the petition reserving liberty to the appellants to file a fresh petition for the same relief. He submitted that since March, 2017 and till date they are living separately. Therefore, the petition could now be considered by this Court.
4. However, what has to be noted is,the mandatory requirement stipulated in Section 13-B of the Act. A petition for divorce by mutual consent could be filed under the said provision, when both the parties to the marriage filed the said petition together on the ground that they have been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed for the marriage to be dissolved.
5. From the facts narrated above, it is noted that parties are living separately since March 2017 and in November 2017 itself they filed petition under Section 13- B of the Act. The petition being not maintainable, the Family court has rightly dismissed the petition reserving liberty to the appellants to file a fresh petition, if so advised. We do not find any infirmity in the order of the Family Court. Hence, the appeal is dismissed by ignoring the delay of 92 days in filing the appeal. Liberty is reserved to the petitioners to file a fresh petition, if so advised.
In view of dismissal of the appeal, I.A.No.1/2019 stands disposed.
Sd/- JUDGE Sd/- JUDGE S*