Karnataka High Court
Smt. Kamakshi Dixit vs K. Srinivas on 7 March, 2025
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NC: 2025:KHC:9892-DB
MFA No. 1046 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 1046 OF 2016 (FC)
BETWEEN
SMT. KAMAKSHI DIXIT
D/O SRI SEETHARAMA DIXIT,
W/O SRI K SRINIVAS,
AGED ABOUT 42 YEARS,
R/AT NO. 397, 2ND CROSS,
KRISHNA ROAD,
GIRINAGAR, 1ST STAGE,
OPPOSITE SHANKARA MANTAPA,
NEAR VIVEKANANDA PARK,
BANGALORE - 560 085.
...APPELLANT
(BY SMT RASHMI GEORGE, ADVOCATE)
AND
Digitally signed K. SRINIVAS
by NIRMALA S/O S KASHINATH SASTRY,
DEVI AGED ABOUT 46 YEARS,
Location: R/AT NO. 769, A BLOCK,
HIGH COURT 15TH MAIN ROAD, 19TH CROSS,
OF
KARNATAKA SAHAKARANAGAR,
BANGALORE - 560 092.
...RESPONDENT
(BY SRI RAVIKUMAR M C, ADVOCATE)
THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURT ACT,
AGAINST THE JUDGMENT AND DECREE DATED 05.01.2016 PASSED
ON M.C NO.1440/2010 ON THE FILE OF THE II ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE
PETITION FILED U/S 13(1)(ib) OF HINDU MARRIAGE ACT AND ETC.
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NC: 2025:KHC:9892-DB
MFA No. 1046 of 2016
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.02.2025, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, POONACHA.J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
and
HON'BLE MR JUSTICE C.M. POONACHA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE C.M. POONACHA) The above appeal is filed under Section 19(1) of the Family Courts Act, 19641 challenging the judgment and decree dated 5.1.2016 passed in MC No.1440/2010 by the II Additional Principal Judge, Family Court, Bengaluru2.
2. For the sake of convenience, the parties are referred to henceforth as per their status in the relationship.
3. The factual matrix in a nutshell leading to the present appeal is that the marriage between the parties was solemnized on 22.10.1997 at Smt Padmavathamma and Sri D.Narayanarao Memorial Hall, Ashoknagar Bengaluru, according to Hindu rituals and customs. That the parties lived together up to 13.1.2007.
1 Hereinafter referred to as 'Act, 1964' 2 Hereinafter referred to as 'Family Court/Trial Court' -3- NC: 2025:KHC:9892-DB MFA No. 1046 of 2016
4. The respondent husband filed a petition under Section 13(1)(ia), 13(1)(ib) read with Section 13(1)(iii)(a)(b) of the Hindu Marriage Act, 1955 (i.e., on the ground of cruelty, desertion and unsoundness of mind) seeking for dissolution of marriage between the parties. The said petition was opposed by the wife. The Family Court by its judgment and decree dated 5.1.2016 party allowed the petition under Section 13(1)(ib) of the H.M.Act (i.e., on the ground of desertion) and the petition filed under Section 13(1)(ia) and 13(1)(iii)(a) and (b) of the H.M.Act (i.e., on the ground of cruelty and unsoundness of mind) was rejected. Being aggrieved, the wife has filed the present appeal challenging the grant of divorce on the ground of desertion.
5. It is pertinent to note hear that the husband has not filed any appeal challenging the dismissal of his petition insofar as Section 13(1)(ia) (i.e., cruelty) and 13(1)(iii)(a) and
(b) (i.e., unsoundness of mind) is concerned. Hence the case put forth by the respective parties will be briefly noticed on the said context.
6. It is the case of the husband before the Family Court that after the marriage between the parties on -4- NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 22.10.1997 they lived together for about 9 years in their matrimonial home along with his parents. However, the parties had no children from their marriage. It is alleged by the husband that the wife suffered from mental depression and she was being treated for mental disorder. That whenever she had a medical problem, she would consult her brother who is a medical practitioner by profession and resident of London, who would decide the medicines to be prescribed to her. That any well intentioned steps/measures taken by the husband for treatment of his wife was disbelieved. That various doctors were consulted as recommended by the wife's brother. The uncle of the husband, who was a doctor was also consulted. That the wife was not involving herself in any household work from the beginning and would never mingle with the husband's family members. That the parents of the husband, who lived along with the parties tried their level best to console the wife and give her confidence. That the wife regularly complained that she is not normal and she has gynecological problem. That the wife was diagnosed with having neurotic depression. That the parties consulted with various doctors due to their inability to beget a child, which aspects have been averred in detail. -5-
NC: 2025:KHC:9892-DB MFA No. 1046 of 2016
7. It is the further case of the husband that the wife was not regularly employed. However to enable her to lead a normal life, the husband assisted the wife in securing employment as a Receptionist in Tulec Computers in May 1998. However, the wife did not continue the said employment. Thereafter, the wife joined M/s. Deepak Laboratories, which employment also she did not continue. That the respondent is suffering from multiple mental disorders, obsessive compulsive disorder, neurosis, sleeplessness, anxiety, etc., and that she has taken treatment with various doctors in various hospitals. That the parties attempted to have a child through IVF procedure on two occasions, which was not successful. That due to various treatments taken by her, her behaviour was not normal and that the wife went into complete depression having mental disorders and developed suicidal tendencies also.
8. It is further alleged by the husband that there was lot of interference from his wife's brother, who interfered with the treatment prescribed by the local doctors treating his wife. That his wife's brother assured that he will arrange for the best treatment in United Kingdom3 and having regard to the health 3 Hereinafter referred to as 'UK' -6- NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 of his wife, he agreed for her to go to UK where her brother was residing. That after completing the VISA formalities, his wife left to UK on 18.2.2007. That his wife used to stay with her parents on many occasions during the time when she was undergoing treatment and that she was staying in her parents place even during the time when VISA formalities for her travel were being completed. That his wife visited their matrimonial home for the last time on 18.2.2007 before boarding her flight to UK and assured that she will return after 80 days. That after his wife reached UK, she stopped calling him, which made him and his family members sense that the wife will not return to the matrimonial home. That the husband learnt from certain relatives that his wife returned after her trip to UK. However, she did not come over to the matrimonial home after her return and that she also did not attend a function arranged in connection with the death ceremony of his grand-father on 7.7.2007. That by chance on 22.4.2008, he met her at ICICI Bank, Jayanagar Branch and she was asked to return back to his home, which she neglected. Hence, he came to understand that she was never interested to continue the marital relationship, as a result of which he got issued a legal notice on -7- NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 16.4.2009, to which she gave a reply dated 13.5.2009. Hence, the husband filed the petition seeking divorce on the grounds of cruelty, desertion and the respondent/wife being of unsound mind.
9. The wife entered appearance before the Family Court and contested the petition filed by the husband and denied various allegations/assertions made in the petition. However, the relationship between the parties was not disputed. It is contented by the wife that the father of the husband was dominant, strict and short tempered person and that her husband and his mother were scared of him. That she was required to seek permission of the father-in-law every time she wanted to go to her parents house. It is further alleged that her father-in-law would shout at her even for doing the day to-day household work and for any other reason which was allegedly not due to his liking. That the wife's parents or her brother were not permitted to visit her without the permission of her father-in-law.
10. It is further alleged by the wife that her father-in- law was desirous of the parties having a male child being born to them and for the said purpose they were taken to various -8- NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 temples and the wife was forced to participate in various religious ceremonies in that regard. That the parties had various medical problems, for which they took treatment from various doctors and were on medication. That the husband used to take money for such medical expenses from her father. That she was not being treated properly in the matrimonial home by the family members of the husband and that the wife was diagnosed as being in a mental traumatic state having depression due to stress. That she was constantly pressurised to have a male child and the said fact further aggravated the stress that was caused. That the wife had secured a job on two occasions, however her father-in-law was not supportive of she being gainfully employed. That her father-in-law would interfere even in small differences between the husband and wife and would make the same a big issue. That the parties attempted to have a child through IVF procedure on two occasions and it was not successful. It is further averred by the wife that her brother got married on 8.2.2024 and the parties participated in the said marriage ceremonies. Subsequent to the said marriage, a child was born to her brother and being desirous of seeing her newly born nephew, she wanted to visit -9- NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 her brother at UK. That there was no assurance of arranging for any medical treatment for the wife during her trip to UK. That her father-in-law opposed to the wife to travel to UK. However, after convincing husband and father-in-law, she was permitted to travel to UK and accordingly, after getting VISA she left the matrimonial home to go to UK on 19.2.2007. That she would call her husband everyday from UK and also to wish him on his birthday, but the husband never tried to contact her when she was staying at UK and never tried to contact on her birthday i.e., on 13th June. That despite the same, the wife repeatedly attempted to contact her husband. That, by the time she returned from UK, her husband, without informing her, shifted the matrimonial home. Hence, she could not return to the matrimonial home. That even after returning from UK, her husband did not contact her, he always disconnected the phone whenever she attempted to get in touch with him.
11. It is further contended by the wife that the husband got issued a notice on 16.4.2009, which was replied by her on 13.5.2009. That the husband has falsely branded her as having major mental illness when no specialists have certified the
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 same. That the wife has undergone sexual harassment, physical abuse, blackmailing and mental harassment by the husband and his family members. That the legal notice has been sent with malicious intent by the husband to tarnish her character. Hence, she sought for dismissal of the petition filed by the husband.
12. Based on the pleadings of the parties, the Trial Court framed the following points for consideration:
"1. Whether the petitioner proves that the respondent has treated him with cruelty?
2. Whether the petitioner further proves that respondent has deserted him without any reason?
3. Whether the petitioner proves that the respondent is suffering from incurable unsound mind or from mental disorder to such an extent that he cannot reasonably be expected to live with the respondent?
4. Whether the petitioner is entitled for the reliefs claimed in the petition?
5. What order? "
13. The husband examined himself as PW.1. Exs.P1 to P214 have been marked in evidence. The wife examined herself as RW.1. Exs.R1 to R6 have been marked in evidence.
14. The Trial Court while considering point Nos.1 and 3 regarding allegations that the wife having treated the husband
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 with cruelty and the wife being of unsound of mind, has recorded a finding that none of the documents produced by the husband certify that the wife is mentally or physically unfit. Hence, the Trial Court has held that there is no concrete evidence to prove that the wife is suffering from depression and that she was not mentally or physically fit to carryout her marital life. It is further held by the Trial Court that there was no cogent evidence to hold that the brother of the wife used to interfere in the marital life or treatment of the wife. Hence, it was held that there was no evidence to hold that the mental condition of the wife is so abnormal, due to which she is not able to live normal life. Further, the Trial Court recorded a finding that undergoing various investigations cannot be considered as a cause for depression. That the medical records are not sufficient to hold that the wife is suffering from incurable mental illness. Further, upon an overall appreciation of the material on record, the Trial Court held that there was no serious allegation of the attitude of the wife towards husband, which caused physical and mental cruelty. That the husband was not able to establish and prove that depression of the wife is such that it is incurable, he is not expected as a reasonable
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 person to tolerate the same and such conduct has caused mental cruelty.
15. It is pertinent to note that the said findings recorded on point Nos.1 and 3 have resulted in the Trial Court dismissing the petition filed by the husband on the ground of cruelty and unsoundness mind of the wife, which has not been challenged by the husband.
16. The Trial Court while considering issue No.2 on desertion has noticed that the wife had no intention of returning to the marital home after her trip to UK and hence, the period of her stay in UK also requires to be considered as desertion. Hence, the Trial Court recorded a finding that from 2007, the parties have been living separately and therefore, the marriage is broken down. It is further noticed that the Trial Court has taken the period of the pendency of the proceedings before it and held that during such pendency the parties could not reconcile their differences and hence recorded a finding that the wife willfully left the company of the husband without any reason.
17. Being aggrieved by the judgment and decree of the Trial Court granting divorce under Section 13 (1)(ib) of the
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 H.M.Act (on the ground of desertion), the wife has filed the present appeal.
18. Learned counsel for the appellant/wife Smt.Rashmi George assailing the findings recorded by the Trial Court submits that the wife left to UK on 19.2.2007 with the consent of her husband and returned in June 2007. That by the time the wife returned from UK, her husband had shifted his residence, as a result of which the wife was unable to join her husband in the matrimonial home. That meeting of the parties on 22.4.2008 at the ICICI bank was not a pre-arranged one and that even in his response to the legal notice dated 16.4.2009 (Ex.P3) issued by the husband, the wife vide her reply dated 13.5.2009 (Ex.P4) categorically asserted that she is willing to rejoin the husband. Reference is also made to the averments made in the rejoinder notice dated 23.9.2009 (Ex.P5) and the testimony of RW.1. Hence, it is contended that the finding of the Trial Court regarding desertion is erroneous and liable to be set aside.
19. Per contra, learned counsel Sri M.C. Ravikumar appearing for the respondent/husband contends that during the pendency of the appeal, there being no stay, the husband has
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 married again on 9.5.2016 and a daughter is born from the said marriage on 2.5.2017 who is now aged 7 years. It is further contended that from the date of marriage between the parties on 22.10.1997, the wife stayed in the matrimonial home only for a few days and she would spend most of her time at her parents place, which continued for the entire period of the matrimonial relationship of approximately 9 years. That the wife visited the matrimonial home for the last time on 18.2.2007 before her travel to UK and took her belongings informing that she will return after visiting her brother at UK. However, the wife did not come back to the matrimonial home after her return from UK. Hence, the last time when wife came to the matrimonial home was more than 17 years ago, which aspect clearly demonstrates that wife has completely deserted the matrimonial home. It is further contended that there has been no consummation of marriage and the wife suffered from various health, medical and gynaecological problems and that various facts regarding the health condition of the wife was suppressed by herself and her family members.
20. It is further contended that the husband was aged 29 years when he was married and was aged 42 years when
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 the divorce petition was filed. That the proceedings before the Trial Court went on for 6 years and the husband was 48 years when the divorce was granted in the year 2016. That the parents of the husband were desirous of the husband having a child and in order to have progeny and the parents of the husband being aged more than 80 years, finally have had the satisfaction of a grand child being born. That the cruelty is embedded in the ground of desertion and the factual matrix in the present case clearly demonstrates that there is constructive desertion. That the purpose of marriage is progeny. Trial Court's Judgment and decree of divorce does not call for interference of this Court.
21. The submissions of both the learned counsels have been considered and the material on record including the records of the Trial Court have been perused. The question that arises for consideration is:
"Whether the Trial Court was justified in allowing the petition filed by the husband under Section 13(1)(ib) of the H.M.Act on the ground of desertion?"
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 Analysis
22. Section 13(1)(ib) of the H.M.Act stipulates that a marriage can be dissolved by a decree of divorce on the ground of desertion if "the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding presentation of the petition".
23. The matrimonial relationship between the parties is admitted. It is admitted that the marriage between the parties took place on 22.10.1997 and parties stayed together till the wife travelled to UK to visit her brother. Admittedly, the wife travelled to UK on 18/19.2.2007. It is forthcoming from para 19 of the petition that the husband convinced his parents and decided to send the wife to UK, where his brother-in-law was residing keeping in mind the wife's health point of view and for her betterment. Hence, it is clear that the date on which the wife travelled to UK cannot be construed as the date for commencement of the period of desertion since it admitted in the petition itself that the wife with the consent of husband and his family travelled to UK. It is further relevant to note that the wife returned from UK in June 2007. However, she did not return to the matrimonial home.
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24. The husband got issued legal notice dated 16.4.2009 (Ex.P3), whereunder he called upon his wife to cooperate in dissolving the marriage and that the parties should jointly make an application before the jurisdictional Court under Section 13B of the H.M.Act, failing which the husband would approach the jurisdictional Court for necessary reliefs. The wife, vide reply dated 13.5.2009 (Ex.P4) after responding in detail to the assertions/allegations made in the legal notice, has categorically stated in para 23 of her reply notice that "she is willing to lead a happy married life" with the husband. In response to the reply dated 13.5.2009, the husband got issued a rejoinder dated 23.9.2009 (Ex.P5), whereunder he in detail set out aspects and called upon the wife to agree for dissolution of marriage by mutual consent, failing which he would approach the jurisdictional Court for proper reliefs. Thereafter the husband filed the petition on 24.5.2010. It is clear that a period of two years has not lapsed between the issuance of the legal notice and the filing of the petition.
25. It is also forthcoming that after the wife returned from UK in June 2007, there is no material on record to indicate that the husband requested her to come to the matrimonial
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 home and that she refused to do so. On the contrary, she contends that he shifted his residence without her knowledge which was a hardship for her to join him. Further, to the legal notice (Ex.P3) issued by the husband calling upon the wife to agree for a divorce by mutual consent, the wife has categorically stated vide reply notice (Ex.P4) that she is willing to live with the husband and lead a happy marital life. The husband vide his rejoinder (Ex.P5) also did not call upon the wife to join him in the matrimonial home. Instead, he reiterated his demand seeking for a divorce by mutual consent. It is clear from the same that the husband has miserably failed to demonstrate that the wife has continuously deserted him for a period of 2 years immediately preceding presentation of the divorce petition.
26. The Trial Court while considering the aspect of desertion has recorded the following findings:
"72. According to petitioner respondent had assured to return from U.K., within 80 days, but even after return from U.K., she did not kept her promise. Her expression of intention to join the petitioner in her evidence appears to be false and not acceptable. When she had no intention of returning to marital home, the period of her stay in U.K., also can be considered as desertion. She has not given the exact date of her return from U.K., and for how many days she lived there. In the absence of these
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 materials, the court has to consider that she has deserted the petitioner continuously for a period of not less than two years immediately preceding the presentation of this petition. From 2007 till date the parties are living separately. The conciliation made after filing petition between them also failed. They have not made any efforts to rejoin. Under these circumstances, the marriage is broken down. Even if the marriage is to be preserved, it will be nothing but a legal tie with any emotional bonding causing hardship to them. It is more than 10 years they are living separately."
(emphasis supplied)
27. From the aforesaid finding of the Trial Court, it is clear that the Trial Court has held that the wife had no intention to return to her matrimonial home when she left for UK. However, the said finding is not based on any material on record. On the contrary, the only material on record being the legal notice (Ex.P3), reply notice (Ex.P4) and rejoinder (Ex.P5) which clearly disclose that it is the wife who has expressed that she is willing to lead marital life with the husband. However, it is the husband who has repeatedly called upon the wife to agree for a divorce by mutual consent. In view of the aforementioned, it is clear that the finding recorded by the Trial Court that the wife has deserted the husband is erroneous,
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 without any basis and contrary to the material available on record.
28. A Division Bench of this Court in the case of Suvarna Kom Ratnakar Shet v. Ratnakar Vinayak Shet4 has held that in order to constitute desertion as contemplated under Section 13(1)(ib) of the H.M.Act not only should there be a separation for a period of two years without any reasonable cause between the parties, but there should also be an intention ("animus deserendi"), to separate. That in order to constitute desertion, the fact of separation as well as animus deserendi requires to co-exist for the entire period of two years.
29. In the present case, the husband has miserably failed to demonstrate that he called upon his wife to live with him in the matrimonial home and that the wife refused without any reasonable cause. Hence, the finding recorded by the Trial Court on issue No.2 and the judgment of the Trial Court allowing the petition filed by the husband under Section 13(1)(ib) of the H.M.Act, requires to be set aside. Further, the Trial Court has construed the period of her stay in UK as 4 ILR 2013 KAR 2384
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 desertion and has also held that the wife has not given the exact date of her return from UK and for how many days she lived there. It is pertinent to note here that the burden of proving desertion is on the husband. As already noticed above, the husband has clearly averred that he convinced his parents to send his wife to UK. Further, the wife has specifically contended that when she was un UK the husband has shifted the matrimonial home, as a result of which she could not return to the matrimonial home which has not been denied or controverted by the husband. Further, admittedly, the meeting of the parties in the bank on 22.4.2008 was not a planned one. Thereafter, the legal notice has been issued. The Trial Court has also taken into account the period of the pendency of the proceedings before the Trial Court. The basis of the reasoning of the Trial Court is ex facie erroneous and liable to be interfered with.
30. Although it is the vehement contention of the learned counsel for the husband that cruelty is inbuilt in desertion, in view of the admitted position that the Trial Court has recorded a finding that the husband has failed to prove his assertion/allegation of cruelty and the husband having not
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 challenged the said finding and the dismissal of his petition filed under Section 13(1)(ia) and 13(1)(iii)(a) and (b) of the H.M.Act, the question of considering the said contention put forth by the husband does not arise. On accepting the defence of wife that husband's allegation of cruelty and mental illness are not proved, it was unfair to accept the claim of desertion more particularly when husband in his notices did not show any inclination for reunion and insisted for divorce. Husband's remarriage pending this appeal even without any leave of the Court does not render the appeal infructuous. Court cannot encourage such conduct.
31. Reliance placed by the learned counsel for the respondent on the judgment of the Hon'ble Supreme Court in the case of Naveen Kohli v. Neelu Kohli5 will not aid the case of the husband in view of the fact the Trial Court has rejected the petition filed by the husband on the ground of cruelty and the husband has not challenged the same. The Hon'ble Supreme Court in the said case5 has granted divorce on the ground of "irretrievable breakdown of marriage", which has been granted in exercise of its powers contained under Article 5 (2006) 4 SCC 558
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NC: 2025:KHC:9892-DB MFA No. 1046 of 2016 142 of the Constitution of India, which cannot be done in the present case.
32. In view of the discussion made above, the question framed for consideration is answered in the affirmative.
33. Hence, the following:
ORDER i. The above appeal is allowed with costs; ii. The judgment and decree dated 5.1.2016 passed in MC No.1440/2010 by the II Additional Principal Judge, Family Court, Bengaluru, is hereby set aside;
iii. The petition filed in MC No.1440/2010 on the file of the II Additional Principal Family Court, Bengaluru, under Section 13(1)(ib) of the Hindu Marriage Act, 1955, is rejected.
iv. In view of the disposal of the main appeal, pending applications, if any, stand disposed of.
SD/-
(K.S.MUDAGAL) JUDGE SD/-
(C.M. POONACHA) JUDGE ND List No.: 19 Sl No.: 4