Karnataka High Court
Sri Kalesh Vijay Kumar vs Smt Rekha Krishnappa on 20 December, 2024
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MFA No.8506 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 8506 OF 2022 (FC)
BETWEEN:
SRI. KALESH VIJAY KUMAR,
S/O SWAMY VIJAY KUMAR,
AGED ABOUT 42 YEARS,
PRESENTLY RESIDING AT:
NO.696, 2ND CROSS,
2ND STAGE, 2ND MAIN
'D' BLOCK, RAJAJI NAGAR,
BENGALURU-560 010.
...APPELLANT
(BY SRI. SUNIL S RAO, ADVOCATE)
AND:
SMT.REKHA KRISHNAPPA,
W/O KALESH VIJAY KUMAR,
AGED ABOUT 43 YEARS,
C/O KRISHNAPPA,
PRESENTLY R/A NO.24,
2ND MAIN, 1ST CROSS,
LALJI NAGAR, LAKKASANDRA,
BENGALURU- 560 030.
...RESPONDENT
(VIDE ORDER DATED 31/10/2024, NOTICE TO RESPONDENT IS
HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE ORDER
DATED 26.09.2022 PASSED IN MC NO. 843/2019 ON THE FILE OF
THE III ADDITIONAL PRL. JUDGE, FAMILY COURT, BENGALURU,
DISMISSING THE PETITION AS NOT MAINTAINABLE UNDER SECTION
13 B OF HINDU MARRIAGE ACT.
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MFA No.8506 of 2022
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 29.11.2024 AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
UMESH M. ADIGA J., PRONOUNCED THE FOLLOWING::
CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN
and
HON'BLE MR JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE UMESH M ADIGA) This appeal is directed against the order passed in M.C.No.843/2018, dated 26.09.2022, by the learned III Addl.Principal Judge, Family Court, Bengaluru (for short, `Family Court').
2. Brief facts of the case of the appellant are that on 28.11.2005, marriage of appellant and respondent was solemnized at Mariswamiappa Kalyana Mantapa, Hombe Gowda Nagar, Wilson Garden, Bengaluru, as per the Hindu rites and customs. After marriage, respondent joined the company of the appellant to lead marital life. From the said wedlock, appellant and respondent have begotten a male child by name Milan K. Vijay Kumar, who is aged about 13 years at present. During initial period of marriage, the relationship between appellant and -3- MFA No.8506 of 2022 respondent was cordial. Thereafter, dispute arose between the parties.
3. During the year 2011, appellant had filed matrimonial case in M.C.No.320/2011 under Section 13 (1)(i-a) of Hindu Marriage Act, 1955, for dissolution of marriage. The said petition was dismissed vide order dated 07.11.2017. Appellant had challenged the said judgment and decree passed in M.C.No.320/2011 before this Court in MFA.No.623/2018. During pendency of MFA.623/2018, the parties to the said appeal arrived at a consensus to the effect that parties would withdraw all the criminal proceedings instituted by each other and consequently would join hands in filing a joint petition under Section 13-B of Hindu Marriage Act seeking decree of dissolution of marriage dated 28.11.2005.
4. In view of the said settlement arrived at between the parties, the appellant filed a memo to that effect in MFA.No.623/2018 setting out the terms and consequently sought for withdrawal of the appeal. This Court by the -4- MFA No.8506 of 2022 order dated 21.02.2019, dismissed the said appeal as withdrawn in terms of the memo.
5. It is the further contention of the appellant that as per the terms of the amicable settlement, appellant has to execute a Gift Deed in respect of site No.16, measuring East to West 31.5 ft. and North to South 40.25+ 31/2 ft., situated at Singapura Village, Yelahanka Hobli of Bengaluru North Taluk in favour of respondent herein and respondent has also agreed to withdraw the partition suit filed as O.S.No.137/2018, filed before the II Addl.Family Court, Bengaluru. She shall also withdraw the petition M.C.No.2346/2018, filed before the II Addl.family Court, Bengaluru, under section 9 of Hindu Marriage Act, and the Execution Petition No.142/2017, filed before the learned VI Addl.Family Judge Court, Bengaluru, for recovery of maintenance. In terms of the settlement, respondent withdrew all the above three cases, similarly the appellant withdrew MFA.No.623/2018 and also executed the Gift Deed.
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6. As per the terms of the amicable settlement, both appellant and respondent jointly filed the petition under Section 13-B of Hindu Marriage Act, seeking dissolution of marriage dated 28.11.2005. In the said M.C.No.843/2019, respondent had initially entered appearance. After execution of the Gift Deed and handing over of the possession of the property by the appellant, respondent did not appear before the trial Court and indirectly withdrew her consent for dissolution of marriage by mutual consent. She did not appear thereafter and consent for dissolution of the marriage. Thereafter, the learned trial Judge after hearing the appellant, by the order dated 26.09.2022, dismissed the petition as not maintainable for want of mutual consent of the parties to the proceedings and liberty was reserved to adjudicate their dispute in accordance with law and same is challenged in the present appeal.
7. The learned counsel for the appellant would contend that marital relationship between appellant and respondent was not in dispute. Their marriage was -6- MFA No.8506 of 2022 solemnized on 28.11.2005. From the said wedlock, they have a son. During initial period of their marriage, marital life was normal and thereafter, their relationship was strained and from January 2010, they have been residing separately. In spite of all the best efforts made by elders of the family, as well as well-wishers, it could not be reconciled any further. Therefore, appellant had filed M.C.No.320/2011 before the Family Court for divorce and it was dismissed. Thereafter, he challenged the said order before this Court in MFA.No.623/2018. During pendency of the said matter, parties arrived at a consensus between themselves on certain terms and they agreed to dissolve their marriage on certain terms. On that basis, they filed M.C.No.843/2019 for divorce under Section 13-B of Hindu Marriage Act. In terms of the said settlement, appellant had executed the Gift Deed in respect of the property belonging to him and the said gift was accepted by respondent. Even the respondent had withdrew the cases filed against the appellant herein.
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8. During pendency of the said M.C.No.843/2019, sold the gifted property by the appellant in favour of third party, contrary to the orders passed by the Court. Thereafter, illegally and unilaterally withdrew the consent. The Family Court instead considering all these facts, technically disposed of M.C.No.843/2019 that in the event of withdrawal of consent by one party, it cannot be proceeded to and pass the orders for divorce and liberty was given to the appellant, as well as to the respondent to approach the appropriate forum for dissolution of the marriage in accordance with law. The said finding is erroneous.
9. In support of his contentions, the learned counsel for the appellant has relied upon the following judgments :
(1) Rachna Jain -vs- Neeraj Jain,1 (2) Prakash Alumal Kalandari -vs- Jahnavi Prakash Kalandari,2 (3) Anil Khatwani -vs- Nistha Khatwani,3 1 2005 SCC OnLine Del 633 2 2011 (4) Mh.L.J. 3 2012 SCC OnLine Raj 1449 -8- MFA No.8506 of 2022 (4) Benny, Represented by his Mother and Power of Attorney Holder -vs- Mini,4 (5) Ajay, s/o Bhikulal Gujar -vs- Shyamali, w/o Ajay Gujar,5 (6) Dr.Jinu Joy -vs- Dr.Bony Baiju,6 Therefore prayed to allow the appeal and dissolve the marriage of the appellant and respondent under Section 13-B of Hindu Marriage Act.
10. From the above facts, following question arises for our determination :
Whether respondent-wife could unilaterally withdraw her consent for divorce after complying the terms and conditions of divorce for granting the divorce?
Our answer to the above question is in the negative for the following reasons :
11. The marriage of appellant with respondent was solemnized on 28.11.2005 according to Hindu customs 4 2021 SCC OnLine Ker 750 5 2022 (3) Mh.L.J. 218 6 2024 SCC OnLine Ker 1254 -9- MFA No.8506 of 2022 and traditions. From the said wedlock, they have a son who is now aged about 13 years. It is contended that their relationship was completely strained and they have been residing separately and appellant through his elders, as well as well-wishers tried to reconcile the matter, however it could not be reconciled and they have been residing separately. The appellant filed petition under Section 13(1)(i-a) of Hindu Marriage Act, for dissolution of the marriage in M.C.No.320/2011, before the IV Addl.Family Judge Court, Bengaluru. It was contested by the respondent and the said Court dismissed the said petition vide order dated 07.11.2017 and that was challenged before this Court in MFA.No.623/2018. It is contended that, during pendency of the said MFA, both the parties arrived at an amicable settlement to dissolve the marriage with consent on certain terms and conditions. According to the said terms and conditions, both the parties jointly filed M.C.No.843/2019 under Section 13-B of Hindu Marriage Act. It is contended that both the parties have complied the terms and conditions of the said
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MFA No.8506 of 2022agreement and in view of the said agreement, both of them consented to withdraw MFA.No.623/2018, pending before this Court.
12. It is further contended that in terms of the said agreement, appellant executed a Gift Deed dated 11.02.2019 in favour of the respondent herein in respect of Site No.16, measuring 31.05 ft. x 40.25 + 31/2 ft., situated at Singapura Village, Yelahanka Hobli, Bengaluru North Taluk. Similarly, he withdrew MFA.No.623/2018. Similarly, respondent also withdrew O.S.No.137/2018, M.C.No.2346/2018 and Execution Petition No.142/2018.
13. It is further contended that after execution of the Gift Deed, the respondent has resorted to dilatory tactics, which resulted in implied withdrawal of the consent given by her. During pendency of M.C.No.843/2019, appellant came to know that respondent is trying to dispose of the property which was gifted to her by the appellant. He approached the Court to grant temporary injunction against the respondent from alienating the said property
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MFA No.8506 of 2022till passing of the decree in M.C.No.843/2019. Accordingly, temporary injunction order was passed against the respondent restraining her from alienating site No.16 referred above until the dispute between the parties was resolved.
14. It is further contended that in spite of such an order passed by the Court, respondent sold the property bearing site No.16 by registered Sale Deed dated 13.04.2022 in favour of one Smt.Madhumalathi. It appears, thereafter ,respondent herein did not participate in the proceedings before the Family Court and an enquiry was held by the Family Court and appellant herein was cross-examined by respondent, but she did not appear before the Court when she was directed to be present before the Court for further hearing.
15. Considering the said facts, the Family Court held that in the application filed under Section 13-B of Hindu Marriage Act, the Court cannot hold detailed enquiry and
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MFA No.8506 of 2022adjudicate the matter. Therefore, it was dismissed by the impugned order.
16. Notice of this appeal was issued to the respondent twice and they were returned unclaimed. Thereafter, the appellant has taken substituted service and published the notice in the widely circulated news paper wherein respondent last resided. Thereafter also, the respondent did not appear before the Court and prosecute the matter.
17. The appellant has filed an application - IA.No.1/2022 under Order LXI Rule 27 of CPC for production of additional documents. These are the documents that came into existence subsequent to filing of the petiton and they are certified copies of the public documents and they are relevant to support the contention of the appellant, therefore, they are taken on record for consideration. The said documents supports the contention of the appellant that both the parties have complied with the terms and conditions of the joint
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MFA No.8506 of 2022petition filed under Section 13-B of Hindu Marriage Act. This fact was not at all denied or disputed by the respondent by appearing before the Court though she refused to accept the notice sent through the Court, as well as when the notice was published in the news paper. There are no reasons to disbelieve that respondent unilaterally withdrew the consent for divorce contrary to the petition filed before the Family Court under Section 13-B of Hindu Marriage Act, that too, after compliance of all the conditions by both the parties.
18. It is necessary to refer Section 13-B of Hindu Marriage Act for deciding the fact in issue, which reads as below :
Section 13B. Divorce by mutual consent.-
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live
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together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
19. In the case of Rachna Jain -vs- Neeraj Jain (cited supra), the High Court of Delhi relying on earlier judgments of Hon'ble Apex Court, as well as other High Courts held that, "Furthermore, this Court cannot be a helpless spectator to the chicanery and duplicity of the respondent-husband who induced the hapless wife, the petitioner, to forego the maintenance claims of not only herself and her daughter but also duped her into agreeing to the withdrawal of the criminal complaints in the hope of starting her life afresh. The husband has by this conduct put the wife in a position of a huge disadvantage. In view of the
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MFA No.8506 of 2022position of the law as noted above, no spouse can unilaterally withdraw its consent for divorce by mutual consent when the grounds such as fraud, undue influence, force, misrepresentation and such consent not being free, not having been pleaded and proved satisfactorily. In the present case, if the withdrawal of the consent by the respondent- husband is upheld, it will lead to an anomalous situation where the petitioner-wife who is law abiding is left high and dry without recourse to any remedy and saddled with a dead marriage whereas the respondent-husband who has resorted to fraud and misrepresentation enjoys his freedom and enjoys another marriage."
In the above said case, judgment in the case of Nachhattar Singh -vs- Harcharan Kaur, reported in AIR 1996 Punjab and Haryana 201, is considered, wherein it is held that, "The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such inquiries as it thinks fit, that the petitioner was in fact presented by both the
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MFA No.8506 of 2022parties to the marriage, that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in Sub-section (1) of Section 13-B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case without making an inquiry under Sub-section (2) the Trial Court has dismissed the petition as withdrawn which could not be done merely on the asking of one party."
20. In the case of Prakash Alumal Kalandari -vs- Jahnavi Prakash Kalandari (cited supra), it is held by Mumbai High Court that, "As aforesaid, if the Petition is filed "simplicitor under Section 13B of the Act" for divorce by mutual consent, the Court must satisfy itself that the consent given by the parties continues till the date of granting decree of divorce. Even if one party unilaterally withdraws his/her consent, the Court does not get jurisdiction to grant decree of divorce by mutual consent in view of the mandate of Section 13B of the Act. However, the situation would be different if the parties in the first instance resort to Petition for relief under Section 9 or 13 of the Act and during the pendency of such Petition, they decide to invite decree for divorce by mutual
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MFA No.8506 of 2022consent. On the basis of agreed arrangement, if the parties were to execute Consent Terms and then file a formal Petition/Application to convert the pending Petition to be treated as having been filed under Section 13B of the Act to grant decree of divorce by mutual consent, then, in the latter proceedings, before the decree is passed, one party cannot be allowed to unilaterally withdraw the consent if the other party has already acted upon the Consent Terms either wholly or in part to his/her detriment. In other words, the Court will have to be satisfied that: (i) there is sufficient, good and just cause for allowing the party to withdraw his consent, lest, it results in permitting the party to approbate and reprobate; (ii) that the other party would not suffer prejudice which is irreversible, due to withdrawal of the consent. If this twin requirement is not satisfied, the Court should be loath to entertain the prayer to allow the party to unilaterally withdraw his/her consent."
21. In the case of Anil Khatwani -vs- Nistha Khatwani (cited supra), the High Court of Rajasthan relying on the earlier judgments held that, " The significance of words, "if the petition is not withdrawn in the meantime" is distinguishable from words, "consent not withdrawn in the meantime" can also be seen in the light of Order 23
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MFA No.8506 of 2022Rule 1(5) of Civil Procedure Code also. Order 23 deals with withdrawal or abandonment of suits. Rule 1 (5) of Order 23 provides that nothing in this rule shall be deemed to authorise the Court to permit one of the several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub- rule (3), any suit or part of a claim, without the consent of the other plaintiffs. The petition under Section 13 B(1) of the Act is a joint petition by two parties. Both the parties are plaintiffs before the Court, therefore, unilateral withdrawal of the same without the consent of other party would be in contravention of Order 23 Rule 1(5) CPC. Even though sub-section (2) of Section 13B of the Act provides that on the motion of both the parties the court can proceed but, sub-section (2) cannot be read bereft of sub-section (1) of Section 13B of the Act. The mutual agreement between the parties in the backdrop of the fact that they have been living separately for one year or more and it is not possible for them to live together as husband and wife is a fact which should continue till the decree is granted and if under sub-section (2) the motion is not jointly filed but the parties continue to live separately, the jurisdiction of the court to grant divorce on mutual consent is not ousted. It subsists on the basis of sub- section (1) of Section 13B itself. The withdrawal of consent has to be established in the form of disappearance of the fact that they have not been
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MFA No.8506 of 2022able to live together & mere withdrawal of `consent' would not per se amount to the withdrawal of this petition under Section 13B(1) of the Act and the party withdrawing the `consent' at this stage of joint motion under Section 13B(2) of the Act has to show that it is possible for both the parties to live together and for which the party concerned has taken sincere and positive steps but has failed for the stated reasons. Nothing of this sort has been shown or established by the respondent wife before the court below or this Court before purportedly withdrawing her consent for divorce by mutual consent. The said purported withdrawal of consent by withdrawal of consent by respondent wife is, therefore, found to be not genuine at all.
22. In the case of Benny -vs- Mini (cited supra), the High Court of Kerala held as under :
"24. Following the judgment in Prakash Alumal Kalandari (supra), we hold that once the parties agree to file a joint petition, pursuant to an agreement/compromise in pending proceedings, then the parties are estopped from resiling from the agreement. Therefore, the unilateral withdrawal of consent by the respondent, especially after the appellant has performed his part of the terms in the memorandum of agreement, is only a sharp practice which cannot be permitted or tolerated for a moment as it would shatter the faith of the litigants
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in the justice delivery system and make a mockery of alternative dispute resolution mechanism."
23. Similarly, in the case of Ajay, s/o Bhikulal Gujar
-vs- Shyamali, w/o Ajay Gujar (cited supra), the Mumbai High Court held that, " 15. In the present matter, the appellant and respondent residing separately since 2001. As both of them filed petition for divorce by mutual consent for which wife shown her consent. In view thereof, appeals pending before the Appellate Court filed by appellant husband were withdrawn. The terms of award in Lok Adalat reflecting number of petition under section 13-B. Thus the said petition is filed on representation of wife that she is agreeable to divorce by mutual consent. Not only this, the amount of Rs.6,50,000/- was deposited by the appellant husband and wife has withdrawn the same. The husband/appellant acted to her prejudice by accepting terms of compromise favourable to wife i.e., withdrawal of appeal and depositing of amount of Rs.6,50,000/-. Wife is, thus, estopped from withdrawing her consent. As held in Prakash (supra) consent cannot be withdrawn unilaterally until and unless it is shown that (i) there is sufficient, good and just cause for allowing the parties to withdraw his/her consent, lest, it results in permitting the party to approbate
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MFA No.8506 of 2022and reprobate; (ii) that the other party would not suffer prejudice which is irreversible, due to withdrawal of the consent. The decree passed by learned trial Court is perfectly justified as there is no sufficient good and just cause for such withdrawal on vague allegations. The learned Appellate Court failed to take into account all these important aspects while setting aside the judgment and decree passed by learned trial Court. In my considered opinion, the learned trial Court rightly appreciated the facts that parties are residing separately since 2001, the husband has withdrawn the appeal in view of filing of H.M.P. for divorce by mutual consent. Both the parties acted as per the terms in the petition by mutual consent and rightly exercised its discretion rejecting unilateral withdrawal by the wife."
Similar view is taken by the Kerala High Court in the case of Dr.Jinu Joy -vs- Dr.Bony Baiju (cited supra).
24. The main object of Section 13-B of Hindu Marriage Act is that, when both the spouses arrive at a conclusion that the marriage should be dissolved with a consent and in this regard, they perform certain terms and conditions and thereafter one of the spouse cannot
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MFA No.8506 of 2022withdraw the said consent on other reasons, except stating that it was obtained by force, fraud, misrepresentation etc., In this case, the respondent did not appear before the Family Court in spite of directions given to her to appear before the Court and even before this Court, in spite of notices issued through Court, as well as notice published in the news paper publication by taking substituted service of notice, she did not appear. This indicates that, without any cause or justifiable reason, she withdrew the consent. Not only that, she had violated the orders passed by the Family Court and alienated the gifted property by the appellant which was one of the terms of the consent. Therefore, the appellant cannot be kept under helpless condition and wife cannot be permitted to act according to her whims and fancies and keep herself away from the Court, so that the right of the appellant could be frustrated. Courts are not helpless and cannot permit such an attitude of the respondent- wife to take law into her own hands and not to appear before the Court at least to inform the reasons for
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MFA No.8506 of 2022withdrawing the consent. The reasons regarding the price of the site cannot be considered as justifiable reason for withdrawing the consent. She should have thought of all these facts prior to giving consent and filing the consent petition under Section 13-B of Hindu Marriage Act.
25. In view of these reasons and consistent decisions in this regard referred above, this is a fit case wherein decree of divorce shall be granted in accordance with Section 13-B of Hindu Marriage Act.
26. For the aforesaid discussion, we proceed to pass the following :
ORDER The Appeal is allowed.
The order dated 26.09.2022, passed by the learned III Addl. Principal Judge, Family Court, Bengaluru, in M.C.No.843/2019, is set aside.
The marriage of appellant and respondent solemnized on 28.11.2005, at Mariswamiappa Kalyana Mantapa, Hombe Gowda Nagar, Wilson Garden, Bengaluru, is dissolved by decree of
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divorce by consent of both the parties under Section 13-B of Hindu Marriage Act.
Registry is directed to send a copy of this judgment to the respondent.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(UMESH M ADIGA) JUDGE bk/