IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NO. 12684/2017 (GM-FC) BETWEEN:
SMT. VENKATALAKSHMAMMA N @ LUDIYAMMA, W/O P SOMAPPA, AGED 70 YEARS, R/AT NO.21, 7TH CROSS, KEMPAIAH BLOCK, J.C.NAGAR, BANGALORE-560 006 (BY SRI. MANJUNATH B R, ADV. - ABSENT) AND MR. P SOMAPPA S/O. PAPAIAH, AGED 74 YEARS, R/AT NO.585, 5TH MAIN, 2ND BLOCK, R.T.NAGAR, BANGALORE-560 032 (BY SRI. VISHNU HEGDE, ADV.) ... PETITIONER ... RESPONDENT ******** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND SET ASIDE THE ORDER DTD:14.9.2016 ON APPLICATION FILED UNDER ORDER 26 RULE 1 R/W SECTION 151 OF THE CIVIL PROCEDURE CODE IN M.C.NO.378/2013 PASSED IN IA NO.XIII PASSED BY THE V. ADDL PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE [ANNEXURE-A] AND ALLOW THE SAME.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R None for petitioner.
Heard Sri. Vishnu Hegde, learned counsel for the respondent.
2. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 14.09.2016 by which the application filed by the petitioner seeking for her examination by way of commission under Order XXVI Rule 1 of Code of Civil Procedure, 1908 (hereinafter referred to as “the Code” for short) has been rejected.
3. Facts leading to filing of the writ petition briefly stated are that the marriage between the parties was solemnized on 28.04.1966. The petitioner has filed the petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for short) on 21.01.2013 seeking dissolution of marriage. During the course of the proceedings, petitioner filed an application under Order XXVI Rule 1 of Code along with a copy of the medical certificate and made a prayer that commission be issued to examine her. The aforesaid prayer has been rejected by the Family Court.
4. I have heard the learned counsel for the respondent at length. Learned counsel for the respondent submitted that he has no objection to examine the petitioner on commission at a neutral place with a time bound manner and with a direction to the Family Court to conclude the proceedings which has been initiated by the petitioner. Taking into account the age of the parties who are senior citizens and in view of the submissions made and as well as the medical certificate annexed by the petitioner, impugned order dated 14.09.2016 passed by the Family Court is hereby quashed. The Family Court is directed to issue a commission to examine the statement of the petitioner and the commissioner shall examine the statement of the petitioner before the Bangalore Mediation Centre after giving notice to the respondent. Needless to state that respondent shall cross-examine the petitioner on the aforesaid date. In view of the fact that the proceedings under Section 13 of the Act is pending since 2013, the Family Court shall make all endeavours to conclude the proceedings expeditiously, preferably within a period of four months from today.
With the aforesaid direction, the petition is disposed of.
Sd/- JUDGE VP